Fair Work Australia: Employer Association Policies, Industrial Law and the Changing Role of the Tribunal

Abstract

In examining the changing role of the national tribunal in recent decades, this article explores the ways in which industrial relations changes that employer associations have sought in the past 25 years are reflected in the Fair Work Act 2009, and the implications of these for the role of Fair Work Australia. The article argues that the evolution of industrial law in Australia since the mid-1980s owes much to the collective efforts of employers, not only to reorient political opinion concerning collective bargaining and the conciliation and arbitration system, but also to achieve concrete changes to the legal framework governing industrial relations institutions and processes. To explore the implications of these changes for the role of the tribunal, we apply Perlman's typology of the tribunal's work, which identifies three main roles – including judicial, legislative and facilitative functions. The analysis concludes that while under contemporary industrial law the tribunal now has less work to do in these areas, the Fair Work Act has expanded the tribunal's role in policing bargaining behaviour. Although this policing role has intensified the tribunal's influence on union industrial action, it has also focused attention on employer conduct in bargaining, an outcome that employer groups had not sought when lobbying for change.