Fair Work Commission credibility on line
The Fair Work Commission in recent times has come under heavy
criticism, some deserved and some not, but the Commission is now
suffering a genuine credibility problem as it demonstrates what can only
be described as an obstructionist approach in approving non-union
enterprise agreements.
This view was echoed recently by former FWC Vice President, Graeme
Watson, who resigned from the Commission in frustration at what
he considered was the loss of impartiality and overt pro-union bias.
The former Vice President has been outspoken in his criticism of the
Commission. On assessing the background he outlines, it is hard
to ignore.
Master Builders can only endorse the former Vice President’s claims
given FWC’s pedantic nit-picking in recent times when it comes to
assessing non-union EBA applications. Coincidently, anecdotal reports
within employer groups suggest this same vigour is not applied by FWC
to EBA applications with unions named as a party, and where a union
has had a direct representation role.
It is no product of imagination that the Commission’s attitude noticeably
changed in late 2016. For example, the Commission approved non-
union agreement applications which, at times, required minor changes
for the agreement to meet the ‘better off overall test’ (BOOT) under the
Fair Work Act. While irritating, it was not a deal breaker. However, that all
took a turn for the worse with the Commission now rejecting non-union
agreement applications which are very similar to those it approved with
little or no adjustment up to mid-2016. The question arising is, why the
sudden change in attitude?
Without stating so, the FWC defers to a well-publicised Commission
decision of mid 2016 involving major supermarket chain EBAs made
with the relevant union but struck down when, going against the union,
some employees challenged the EBA on the grounds they were worse
off compared to the award. That challenge got up based on actual
employee work rosters showing they got less than the minimum award
payments notwithstanding the union’s direct involvement.
Following that decision, the Commission now appears to be taking
a sledgehammer to employer non-union EBA applications for what
at times are unfathomable reasons. For example, an employer filed
a non-union application with FWC in which employees received as
the lowest weekly payment, a wage almost $300 per week over the
award rising to $800 per week for the highest agreement classification.
The Commission initially found the non-union EBA did not pay better
than the award. When the obvious was pointed out, the Commission
indicated the agreement undercut the relevant award in certain
areas. As the agreement was underpinned by the relevant award, the
Commission’s contention was bizarre.Other examples include FWC finding a non-union EBA in WA which
prescribes the 10 WA public holidays undermined the employees’ public
holiday entitlement; and FWC posing speculative work rosters that are
never worked as a basis to argue a non-union EBA fails the BOOT.
In one instance the Commission argued a casual employee might
be employed to only work on Sundays. While that might be a usual
work pattern in the hospitality and retail sectors it is not in commercial
construction. The employer’s response to the Commission’s false
assertion is not printable, save to say, the employer had never employed
anyone on that basis and never had any intent to do so.This speculative approach clashes with the Fair Work Act which requires
the Commission to accept the application on face value save for where
there is evidence which conflicts with the information in the application.
When the Commission is challenged to provide any evidence to support
its speculative work roster scenarios it does not, as none arguably
exists. However, despite being reminded of its legislative requirements
the Commission refuses to accept it is acting beyond power and against
the findings of the supermarket chain case of 2016. That case was
based on actual employee work rosters, not some unknown employee
who might work some extraordinary work roster at some unknown time
in the future. Add then the FWC finding an entire non-union agreement
application was defective because the word “helpline” was used as
opposed to “infoline” in a letter to employees saying the employer
wanted to start negotiations for an EBA.These examples demonstrate a serious change in tack by FWC which
seems to have lost touch with the objects it is required to follow under
the Fair Work Act and only buttress the criticism of former Vice President
Watson of the Commission exercising an overt bias in how it goes about
performing its statutory functions. This is neither desirable nor fair in
anyone’s fair-minded view.Master Builders’ construction director
Kim Richardson34 UPDATES industrial relations
MAY–JUNE 2017