Gillard, employers challenge crucial Fair Work rulings on flexibility arrangements and entry rights

Workplace Minister Julia Gillard has joined the Australian Industry Group in challenging two crucial Fair Work Australia decisions involving unions’ right of entry and the effectiveness of flexibility arrangements.

Gillard and the AIG appeared at two separate appeals before the Full Bench of FWA yesterday to argue the Commission’s original decisions in the Trimas and Dunlop Foams cases.

In the Dunlop Foams case, Commissioner John Ryan earlier allowed an agreement that had authorised National Union of Workers representatives to enter the employer’s workplace “at all reasonable times upon the premises and to interview any employee, but not so as to interfere unreasonably with the employer’s business”.

But some employer groups – and the Government – launched an appeal, arguing the agreement flies in the face of the right of entry laws set down in the Act, which set out strict conditions about how and when unions can enter a workplace and the notice required the unions need to provide.

Gillard’s representative before the Full Bench, Paul O’Grady, yesterday told the Commission the agreement was unlawful because it gave an entitlement to right of entry that could “defeat the statutory scheme” covering entry rights.

AIG’s submission broadly supported the Government’s position.

“The right of entry and unlawful term provisions of the Act were the subject of extensive discussion and debate between the Government, Ai Group and unions during the development of the legislation and during the Senate Committee inquiry into the Fair Work Bill,” AIG chief executive Heather Ridout said in a statement.

“A balance was struck between the competing interests and Ai Group believes that Commissioner Ryan’s decision disrupts this balance and is inconsistent with the intent of the legislation.”
In the Trimas case, Commissioner John Ryan rejected the workplace agreement made between the Trimas and the Australian Manufacturing Workers Union over the inclusion of an individual flexibility arrangement.

In what was seen as a very technical decision, Ryan said an IFA may not vary the terms of a workplace agreement and could only vary the “effect of the terms of an agreement”.

Had those two words – that is, “the effect” – being inserted, Ryan said the agreement would have been allowed through.

However, Ryan does not have the power to insert those words himself and instead can only insert into an agreement the standard (or model) IFA specified by the Fair Work Act.

But the Government and the AIG, who has earlier expressed concern that the decision was contrary to the intent of the Fair Work legislation, argued that an IFA could vary a term of an agreement.

“Flexibility Terms were devised by the Federal Government to provide the flexibility to individual employees to reach agreement with their employer on arrangements which differ from those in the relevant enterprise agreement. A better off overall test and other safeguards apply,” Ridout said.

“In his decision, Commissioner Ryan has placed a very narrow interpretation on the flexibility available under Flexibility Terms which is inconsistent with the intent of the legislation.”

The outcomes of the appeal will be known in the next few weeks.