Recent interpretations & constructions of equality regulation in the Fair Work Act 2009

While the sphere of industrial relations was overshadowed by the global financial crisis, 2009 was a year of immense change in the regulation of work and workplaces. Many provisions of the Rudd government’s Fair Work Act 2009, including the new collective bargaining regime, came into effect. Unions and employer organizations were preoccupied with the monumental process of award modernization throughout 2009. The AIRC has ceased to exist and it, along with a number of other regulatory bodies, has been subsumed into the new institution Fair Work Australia. The remaining key provisions of the Fair Work Act 2009, including the NES and modern awards, are effective on January 1 2010. This article analyses the early days of the operation of this ‘new’ Australian industrial relations.

Since the 1970s, the significance of make-up pay has fluctuated depending on the adequacy of weekly payments available under state workers’ compensation legislation. From the 1970s through to the latter part of the 1980s there was an, uneven but, upward trajectory in weekly payments and their duration. Since then the general trend has been in the opposite direction, reflected in the winding back of entitlements and the widespread use of step-downs in weekly payments. In the wake of these setbacks, accident make-up pay remains an issue of significant relevance for the Australian labour movement. The reason is not hard to find. In New South Wales and Victoria, for example, injured workers receive no more than 80 percent of their average pre-injury earnings if unable to return to work within 13 weeks. A stepdown of this magnitude equates to a pay cut of 20 percent - a high price to pay for being injured at work and particularly so for low paid workers. Elsewhere in Australia, step-downs are not always as harsh or, where they are, come into force at a later date. The continuation, however, of accident pay provisions as an enforceable collective bargaining entitlement was brought into question by the award modernisation process which commenced in 2008. The stated aim of the modernisation process was to review and streamline Australia’s national industrial relations system. One of the crucial aspects involved was the extent to which existing entitlements remained relevant and should be incorporated in modern awards. In the case of accident pay provisions, employer groups argued for their exclusion from modern awards whereas unions and the federal Labor government sought to secure their inclusion. When the new system came into place in January 2010 over 1500 pre-existing awards had been reviewed and transformed into 122 modern awards. Accident pay was included, but only as a ‘transitional ’ provision to be reconsidered as part of a four yearly review of modern awards scheduled for 2014. Fair Work Safety Nets and Workers’ Compensation Laws A key aspect of the Fair Work Act (FWA) and the modern awards system involves the requirement to ‘provide a fair and relevant minimum safety net of terms and conditions’. The ACTU argued that inclusion of accident pay provisions into the relevant awards was consistent with, and necessary to achieve, this objective. The emphasis placed on the safety net objective in the FWA was particularly pertinent for low paid, award reliant, workers who are most likely to experience substantial financial disadvantage were this entitlement to be removed. The industrial relations tribunal examined the evidence for and against workers’ compensation step-downs for the first time and ruled to protect entitlements available to injured workers INTERNATIONAL union rights Page 18 Volume 23 Issue 1 2016 KEVIN PURSE is with Central Queensland University’s Appleton Institute in Adelaide, South Australia, and has an extensive background in Work Health and Safety and Workers’ Compensation policy I n August 2015 a Full Bench of the Fair Work Commission, Australia’s national industrial relations tribunal, handed down a decisive judgement upholding the principle that accident make-up pay provisions should continue as an entitlement available to injured workers under 37 modern industrial awards. The unanimous Full Bench decision supported an application by the Australian Council of Trade Unions, the country’s peak union organisation, despite vigorous opposition major employer groups along with the federal Liberal/National coalition government and its New South Wales counterpart. Accident make-up pay provisions have been an important component of many industry awards and enterprise agreements in Australia. They are designed to offset the financial hardship of ‘stepdowns ’ - phased cuts in income replacement payments for injured workers - contained in Australia’s predominantly state based workers’ compensation laws. Accident pay provisions operate on the principle that if a worker suffers a work related injury the employer is obliged to make up the difference between his or her pre-injury wages and income replacement payments paid by the workers’ compensation insurer. Typically, make-up pay provisions apply for periods ranging from 26 to 52 weeks, by which time the vast majority of injured workers have returned to work. Accident Pay and Modern Awards Accident...

This article examines a number of decisions of the High Court of Australia, the Federal Court of Australia, the Fair Work Commission and the Local Court of NSW from 2013 regarding industrial law issues including the application of the Fair Work Act 2009. In the decision of Commonwealth Bank of Australia v Barker, the Full Federal Court confirmed the existence of an implied term of mutual trust and confidence in an Australian employment contract. The Federal Court of Australia's decision in Warrell v Walton examined the right of parties to be represented before the Fair Work Commission. The High Court of Australia's decision in Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd allowed an appeal from the decision of the Federal Court of Australia which had held that accommodation provided to fly-in/fly-out employees constituted payment for the purposes of a protected industrial action. The interpretation of section 90(2) of the Fair Work Act 2009 received its first judicial analysis in a decision by the New South Wales Local Court in Stephen Edward Ryan v Whitehaven Coal Mining Pty Ltd. Lastly, with the Fair Work Commission's specific bullying jurisdiction to commence on 1 January 2014, the decision of Harris v Workpac Pty Ltd provided an example of an approach that the Fair Work Commission may take in its newly conferred jurisdiction.

The issue of weekend penalty rates has been an important area of contention in Australian industrial relations in recent times, with employers seeking reductions in penalty rates or their elimination altogether. In its recent review of Modern Awards, the Fair Work Commission decided to reduce Sunday penalty rates in a number of awards. The decision was in part informed by a recent review by the Productivity Commission, which had gone so far as to recommend that penalty rates on Sundays be made equivalent to Saturdays. In this article, we examine two of the main justifications for reductions in Sunday penalty rates. We begin by examining the question of whether Sundays are still ‘special’ in a sense likely to warrant penalty rates additional to those on a Saturday. We find that Sundays remain the least preferred day to work, are most valued by employees, and occupy a particular role in time shared with family. We also examine the key claim by the Productivity Commission – accepted by the Fair Work Commission – that a reduction in penalty rates would necessarily result in increased employment in the industries considered. We find that there is little direct empirical evidence for this, and that minimum wage studies have been largely unable to find a net employment effect. The relationship among wages, policy and unemployment is complex in a way that defies simple predictions. There is a need for more direct evidence of the effects of penalty rates on employment.

Human rights and freedoms are based on the imperative of its physical and mental autonomy. Neuro-technologies, which have provided the possibility of contactless interaction with the human brain, have significantly increased the risks of manipulating the consciousness of citizens. Fundamental human rights and freedoms, such as freedom of thought, speech, conscience, privacy, personal and family secrets, have been threatened. Today, an updated understanding of these rights and freedoms is required, as well as a modification of the legal means of their protection, taking into account the impact that neuroscience has on the effectiveness of their achievement. The urgency of this issue led to the formation of the concept of neuro-law and the start of a process aimed at the neuro-technological improvement of a number of acts of international law under the auspices of the United Nations. The objectives of this article are to analyze the concept and content of neuro-rights, to study the transformation of the legal interpretation of fundamental human rights and freedoms under the influence of neuro-technology. The objective of the work is to develop a methodology for compensating neural risks by legal means using the mechanisms of public international law and the private law institute of copyright. As a result of the research, the content of the concept of human neuro-rights is revealed and the main approaches to the formation of this branch of law are described. An updated interpretation of human rights and freedoms in the new neuro-technological realities is proposed. The UN methodology aimed at improving existing acts of international law in order to compensate for neuro-technological threats to human rights has been analyzed and recognized as effective. The scientific and practical result of the article was the development of the concept of using copyright mechanisms to prevent neural risks in the field of private law relations, including the dangerous consequences of illegally copying a citizen’s identity.

This article examines the issue of human dignity in relation to human rights. It analyses the functions and principle of human dignity and its use in the Universal Declaration of Human Rights and other international instruments. It suggests that human dignity seems to help justify expansive interpretations of human rights and strengthens the centrality and importance of the right in question and limiting possible exceptions or limitations to that right. This article also contends that the difficulty of reaching greater consensus on the meaning and implications of human dignity in international human rights law may be attributed to the fact that it refers to both a foundational premise of human rights and to a principle that affect interpretation and application of specific human rights.

Even many scholars considered to be strong human rights universalists understand that the interpretation and implementation of human rights will vary across time and place. What remains unclear is how much room for interpretation exists before the rights in question are no longer recognizable as human rights. This article engages this question through an analysis of Rwanda's 2009 gender violence legislation, a law framed by the government as human rights-oriented and widely praised as “landmark” legislation. I argue that an analysis of its provisions reveals the dangers of approaching the implementation of gender violence legislation as a progressive step in itself and that granting flexibility to authoritarian, post-conflict societies in the interpretation of human rights norms risks stretching human rights in a way that undercuts the principle that makes them distinctive—that all persons are entitled to equal concern and respect, independent of the fulfillment of social obligations.

This paper examines the modern award application made in April 2021 by Menulog Pty Ltd., an app-based food-delivery platform, and charters the subsequent process which was handled by the Fair Work Commission, Australia's main industrial relations tribunal. This, ultimately unsuccessful, application for a new modern award was part of an organisational strategy that would have seen Menulog treat its delivery workers as employees rather than contractors, thereby deviating from established norms in this part of the gig economy. By invoking this rarely used provision of the Fair Work Act 2009, the platform set in motion an institutional process that would have led to gig work becoming part of the Australian industrial relations systems. In the paper, we analyse and contextualise the progression of Menulog's application using a qualitative socio-legal documentary analysis, drawing upon institutional work as our theoretical lens. We contribute to pluralist industrial relations debates by highlighting the challenges that industrial relations systems and actors face in bringing neoliberalising work practices like gig work into the fold. Moreover, we show how the actions of incumbent actors and the statutory responsibilities of the Fair Work Commission shaped the process and contributed to a largely unsatisfactory outcome for all involved.

Research Handbook on Labour, Business and Human Rights Law, edited by Janice R.Bellace and Beryl terHaar. Edward Elgar Publishing, Cheltenham, UK, 2019, 528 pp., ISBN: 978‐1‐78642‐310‐7, £195.00 (US$290.00)

The article examines understudied dimensions of the interpretation of human rights in Ukrainian science, highlighting their key role in shaping the contemporary objectives and orientations for the right to freedom of religion or belief. This work reveals the main provisions regarding the definition and legal safeguarding of religious freedom in each of the modern approaches to the interpretation of human rights: the Sustainable Development Goals, the capability approach, decolonialism and the feminist approach.Along with the classical framework of international human rights law, these approaches broaden the spectrum of perspectives on realizing the right to freedom of religion or belief. The Sustainable Development Goals consider religious freedom in terms of achieving the well-being of present and future generations and leaving no one behind. The capability approach complements the formal definition of the right to religious freedom, with the individual’s actual ability to exercise such a right. Decolonial and feminist studies provide a thorough critique of established notions of law, deconstructing and reconstructing them through analysis of the rights and needs of women, indigenous peoples, and other marginalized groups.Despite individual features in the interpretation of legal and social phenomena, all approaches (sustainable development, the capability approach, decolonialism, feminism and anti-discrimination) share one common characteristic: they offer an alternative point of view on the established relationships that exist in specific societies. The feminist approach, for example, is closely intertwined with the approach of decolonialism. In particular, in the case of wearing religious clothing, the choice of whether or not to wear such attire should be left to the women who are required to wear it, not to human rights defenders or arbitrators from other countries or institutions who can decide for the women that wearing religious clothing violates their rights.This research focuses on human rights, particularly freedom of religion, which is partly perceived through the Western, European-American vision of human rights. On the contrary, the abovementioned critical approaches present a new vision of established international legal provisions. It should be emphasized that critical does not mean negative. Through such critical thinking, the law has an opportunity to evolve and become more attuned to specific concepts or ideas. The view from within a particular societal group allows to provide a more objective understanding and interpretation of the human right to freedom of religion or belief.

Despite increasing recognition of the intersections between human rights and environmental protection, relatively little attention has been paid to the use of international environmental law in the interpretation of human rights law by UN human rights bodies. This article examines how and to what extent international environmental standards may be used in the interpretation of human rights by UN bodies, utilising the legal interpretive method of systemic integration under Article 31(3)(c) of the Vienna Convention on the Law of Treaties 1969, with a particular focus the recent Torres Strait Islanders case before the Human Rights Committee. The article analyses the situations in which systemic integration may be used to integrate environmental standards in the interpretation of human rights and concludes with some evaluative reflections on the use of systemic integration in this context, the advantages, disadvantages, limitations, and implications.

The urgency of the study is stipulated by the necessity to cover the process of project preparation and adoption of the Universal Declaration of Human Rights, which will allow a comprehensive study of the nature of human rights, to understand their universal nature. The choice of the Universal Declaration of Human Rights as an object of the study is determined by the special nature of this international soft law act. It is emphasized that the process of adopting this international act remains somewhat unclear among lawyers. The preparation and adoption of the Universal Declaration of Human Rights is hardly covered in the legal literature, which does not contribute to a comprehensive understanding of the Western human rights concept and relativism in the interpretation of human rights as a phenomenon within various legal cultures. Some aspects of project preparation and adoption of the Universal Declaration of Human Rights are described. The activities of the Human Rights Commission, which consisted of 18 members representing various political, cultural and religious groups, are noted. It is emphesized that starting with Art.1 of the Universal Declaration of Human Rights from the words “All people are born free and equal…”, the developers of the Universal Declaration of Human Rights reproduced the idea of the universality of human rights, their global nature, that is not limited to a state or even a region. It is summed up that representatives of various groups of the population were involved in the work on the text of the document, creating an international act that was to consolidate human rights, to embody the ideas of equality of human rights, and their universal character. However, while adopting the Universal Declaration of Human Rights, not all states voted in its favor. Eight states have refrained from supporting it which is stipulated by a number of religious and political factors. At the same time, different interpretations of human rights by various states do not deny their universal nature. Covering the issue of human rights, it is advisable to disclose the process of preparation and adoption of the Universal Declaration of Human Rights, which will allow systematically and clearly understand the nature of human rights, differences in the activities of various states concerning human rights ensuring.

This essay is a reply to Christopher McCrudden's Human Dignity and Judicial Interpretation of Human Rights, 19 EJIL 655 (2008). It argues that McCrudden's study of the uses of the idea of human dignity in constitutional human rights adjudication confirms the thesis that there is at present an emerging global ius commune of human rights. Although McCrudden understates the existence and value of transnational agreement about human dignity and instead emphasizes divergences in the judicial uses of human dignity, in fact there is good reason to regard the core recognition of the status and principle of human dignity as more robust and useful and the disagreements as comparatively marginal and unimportant. Nevertheless, this article concludes, a substantive cross-cultural dialogue about the meaning and implications of human dignity for law is vital to the future of the human rights project; merely regarding the use of human dignity in functionalist terms as an empty placeholder for judicial discretion is inadequate.

The closures and restrictions imposed at workplaces around Australia in response to the COVID-19 pandemic have raised unprecedented issues for trade unions seeking to exercise rights of entry in accordance with Part 3–4 of the Fair Work Act 2009 (Cth). Section 491 requires that union officials seeking to exercise a statutory right of entry comply with any ‘reasonable request’ by an occupier about an occupational health and safety (OHS) requirement that applies to the premises. This had led to disputes about the appropriateness of requirements imposed by employers to mitigate the risk of COVID-19 infection and transmission. This paper will discuss three recent Fair Work Commission (FWC) decisions which consider the reasonableness of requests limiting entry to premises in this context. Although the cases had different outcomes, the FWC’s findings demonstrate how an employer’s OHS obligations relating to COVID-19 will be weighed against the objects of Part 3–4. Overall the FWC has taken a practical and nuanced approach to such disputes, and expected some cooperation between employers and unions. The limited scope of these decisions does, however, leave some questions relating to rights of entry during the pandemic unanswered.

The optimal legal and institutional framework for facilitating workers’ access to collective bargaining is a central issue for labour law. Since 2009, Australian labour law has adopted a novel approach to the issue of whether workers should have the right—and employers, the obligation—to engage in collective bargaining. The Fair Work Act 2009 (Cth) (FW Act) seeks to promote collective bargaining in good faith at the enterprise level, by empowering the Fair Work Commission (FWC) to facilitate good faith bargaining and the making of enterprise agreements. One of the key mechanisms available to the FWC is the power to make a majority support determination (MSD), in situations where an employer refuses to bargain and a majority of the relevant employees want to bargain collectively. The making of an MSD then triggers a number of other obligations (including the good faith bargaining requirements) and opens the way to other forms of FWC involvement in the bargaining process. An MSD has the effect of compelling an employer to bargain collectively where it has previously refused to do so. The MSD process is therefore akin to the statutory union recognition procedure operating in the UK and the long-standing union recognition processes that apply under Canadian and US labour laws. However, the Australian iteration of these legislative attempts to address the problem of employer resistance to bargaining is distinctive because it gives the FWC considerable flexibility in the method used to determine majority support for bargaining. For example, the FW Act allows for—but does not require in all cases—a ballot of employees to be conducted in order to determine the level of support for collective negotiations. Other means of establishing employee support, such as petitions, are also permitted. This potentially avoids some of the problems that have affected ballot-based union recognition systems. This article focuses on the operation of the MSD mechanism over the period 1 July 2009–30 June 2015. The article provides some background to the development of the MSD provisions in the FW Act by the former Labor Government. This is followed by an examination of the MSD provisions in the overall context of the FW Act bargaining regime, and their operation in practice, including some comparisons with the main elements of the UK statutory union recognition procedure. The article concludes with some observations about the effectiveness of MSDs in comparison with the statutory recognition procedure in the UK.