The head of Middletons’ workplace relations and employment group, Alice de Boos (pictured), spoke to Lawyers Weekly in the wake of an industrial relations conference held in Sydney on 6 March.
At that conference Steve Knott, the head of the AMMA, which is a leading resource industry employer group, said the Act provided more opportunity for unions to launch strike action.
“The current IR framework has seen AMMA members held to ransom in their commercial and managerial decision-making by the restrictions on Greenfield agreements, unfettered access to protected industrial action and the broad reach of the general protections provisions,” said Knott.
de Boos conceded that the Act does “facilitate a greater level of disputation”. However, she said it would be wrong to say that it was the cause of industrial action.
“You can never ever blame strikes in an industry simply because of the law,” she said. “It will be due to a combination of factors such as where that company is going, what their strategy is, and the relationships between the people in the workplaces.
“That is all within the overlay of what the legal structure is, but at the heart of it will be a dispute between people, and that is not necessarily driven buy the legal structure.”
de Boos went on to say that the Act is “hardly a union friendly piece of legislation”, and that outside of a few key areas including provisions on enterprise bargaining, there is very little difference between the Act and the previous legislation under the Howard government.
“The laws around industrial relations are the same as the laws around WorkChoices as well, but a change in the way that we bargain and what we can bargain for means that there is more [industrial] activity.”
In releasing its top 10 trends for the Australian mining industry in 2012 last month, Freehills said the mining industry had seen a steady increase in industrial activity since the Fair Work Act came into effect in 2009.
The FWA stifles productivity
The Fair Work Act also came under strident criticism from the AMMA for its effect on productivity in the energy and resources sector.
“It’s clear the IR laws need to change to ensure more flexibility is given to employers to respond to changing market conditions but to also outlaw agreement content that does nothing to enhance the productivity of an enterprise but serves only to further entrench union power and influence,” said Amanda Cochrane, the national legal affairs manager at the AMMA.
According to de Boos, a lot of her firm’s industrial relations clients, the majority of which come from the resources or construction sector, have expressed concerns about the attitude towards enterprise bargaining in the Act.
“A fair observation about the Act is that productivity does not play a role in the enterprise bargaining regime where it should,” she said. “The laws surrounding the enterprise bargaining system and the rules about what you can and can’t do and can and can’t include in a bargaining agreement are completely silent on the issue of productivity.
“It is fair to say that these days there is no true exchange of productivity or efficiency measures in return for pay increases. Enterprise bargaining has evolved into something that was not envisaged when it was first introduced nearly 20 years ago.”