Major Tribunal Decisions in 2009

Abstract

The year 2009 has seen significant change in Australian industrial relations, in particular, the repeal of the Workplace Relations Act 1996 and its replacement with Labor’s Fair Work Act 2009. From 1 July 2009, a new industrial tribunal, Fair Work Australia, replaced the Australian Industrial Relations Commission. The decisions issued by Fair Work Australia (FWA) since 1 July 2009 have put the provisions of the Fair Work Act into practice and perspective. This article focuses on those decisions which have dealt with enterprise bargaining and the agreement-making process under the Fair Work Act. Those cases demonstrate that the new agreement-making process is procedurally complex, and that FWA lacks discretion to approve enterprise agreements notwithstanding some procedural irregularity. FWA’s lack of discretion in determining whether an enterprise agreement has been ‘genuinely agreed to’ is inconsistent with the discretion reposed in FWA in other matters, including in determining whether an applicant for a protected action ballot order has been ‘genuinely trying to reach an agreement’.