As the political circus around industrial relations laws continues, the effects of Labor's Fair Work Act are still yet to be fully grasped or appreciated. And this, reports Claire Chaffey, highlights more than ever the need to stabilise workplace laws

Traditionally, industrial relations (IR) has occupied the upper echelons of federal election campaign fodder.

Its importance as a key battle in winning the election was evidenced during the 2007 federal election, with Kevin Rudd's success largely due to the massive campaign waged against John Howard's WorkChoices.

And while WorkChoices - if you can believe what Tony Abbott says - is "dead, buried and cremated", lawyers and their clients are still very much coming to terms with its replacement.

As the last election demonstrated, the vastly different ideological standpoint on IR between the Labor and Liberal parties has rendered IR laws more prone to change than any other area of law.

Navigating the IR landscape

The Fair Work Act 2009 (FWA) fully came into force on 1 January 2010, but according to Maurice Blackburn principal Josh Bornstein, Australians are still familiarising themselves with and adjusting to the new laws.

"Industrial relations has been in a state of flux for a number of years because of frequent changes to federal workplace legislation, which is a manifestation of the political debate that has been raging for at least 10 years," he says.

"In my experience, that adjustment is going to take at least two years, because of the complexity of the area and the particular sequence of change we've had."

According to Bornstein, this string of changes means that navigating the laws is still very difficult.

"Considerable uncertainty exists for people who are affected by the laws," he says.

"For example, I am currently preparing a claim in the Federal Court [which] involves a period of a number of years, and so it will involve at least three different versions of the act over this period. Pleading different sections of the Workplace Relations Act and the Fair Work Act and the transitional provisions ... is complex and time consuming."

Corrs Chambers Westgarth partner Val Gostencnik agrees that constant political debate in this area, and hence the constant change, has made IR an area which is difficult to master.

"We have had enormous amounts of change - quite complex and detailed - to the industrial relations landscape, and it makes it very difficult for employers, because they simply don't understand [the law] or don't have a chance to get used to it," he says.

The FWA - a quiet achiever

According to Gostencnik, the introduction of the FWA has not been the fertile battleground he was expecting.

"IR litigation has been surprisingly quiet, given the general protections provisions of the FWA and the express powers that have been conferred on the Federal Court to grant injunctive relief in circumstances where there are breaches of awards or agreements," he says.

"In part, that may be because the IR participants, unions and employers, are still working their way through the legislation. There has ... certainly not [been] the avalanche that one would have expected. It doesn't mean it won't happen, but it certainly is a little bit surprising."

Another reason for this sluggishness, suggests Gostencnik, is that the provisions of the FWA took effect during the global financial crisis, though he questions that this would truly have an effect on the use of the legislation.

Bornstein, though, says he has seen a marked increase in general protections claims and unfair dismissal claims.

"Most employees were locked out of unfair dismissal claims under WorkChoices and that's not the case now, so there has been an increase in [these cases]," he says.

"WorkChoices really depressed a lot of the activity in this area and the FWA means that now employees can enforce those rights and, from time to time, actually win those cases. Previously, that was not really the case."

Bornstein has also seen a definite increase in bullying and discrimination claims, though is unable to attribute this to any specific factor, other than "people behaving badly".

Perhaps the most significant development, according to Bornstein, is the restoration of the balance of rights between employers and employees.

"Collective bargaining [is] back to the forefront of industrial relations legislation in this country, and the effect of those things has been to introduce more balance between the interests and rights of employers and the interests and rights of employees," he says.

Gostencnik, however, is more guarded in his opinion of balance brought about by the FWA.

"Whether or not the balance is right depends on one's points of view. I certainly have lots of clients who argue passionately that a system that has so many checks and balances in relation to employer activity ... creates undue interference with the relationship of employer and employee and therefore is inefficient," he says.

"These are views that I hear expressed quite often."

Steady as she goes

With IR laws retaining a comparatively low profile in the current electoral campaign, both Bornstein and Gostencnik are cautiously optimistic that they may be able to enjoy a much needed period of consolidation and relative stability.

"It would be good if we got a set of laws bedded down and tested through the courts," says Gostencnik.

"Particularly in the area of small business, you shouldn't have to run off to see a lawyer every time you want to know what you have to pay your workforce. The changes that have been brought about have generated a great deal of confusion."

Bornstein is fairly confident that the post-election government will not change IR laws, largely due to a perception of public fatigue.

"To some extent, the whole experience with WorkChoices has meant that the politics in this area has changed considerably," he says. "Because of what I would call the political toxicity of WorkChoices, the Opposition is saying it is not going to change the legislation."

But despite Abbott's dubious promises, Bornstein is concerned that the actual effects of the legislation can still be altered through manipulation of the FWA's regulations.

"Although the opposition has said it is not going to change the legislation, it's been somewhat confused in its messages and still unclear about whether it is going to change the regulations [and] there is vast scope to actually change the effect of these laws through changes to the regulations," he says.

"Employers and employees have been kicked from pillar to post trying to constantly make adjustments to the changing laws. That has got to stop."

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