Fair Work Commission Research Articles

A reflection on life and work as a vice president of the fair work commission from Joseph Catanzariti AM

A reflection on life and work as a vice president of the fair work commission from Joseph Catanzariti AM

Danger, keep out! Trade union rights of entry during the COVID-19 pandemic

ABSTRACT 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.

Religious Freedom and Job Security

Debate on the need for new anti-discrimination laws to address religious discrimination continues in Australia. Claims for greater protection for freedom of religious expression present particular challenges for employers who bear responsibilities to maintain psychologically safe and healthy workplaces for all their employees. The present ‘general protections’ against discriminatory treatment in the Fair Work Act 2009 (Cth) do not adequately deal with complaints of discrimination, largely because of the ease with which employers can excuse adverse action on the basis of their own workplace policies. However, the proposals in the Religious Discrimination Bill 2019 (Cth) go too far in seeking to address that weakness. We propose that an alternative model for balancing the respective interests in workplace disputes of this kind would be expanding the workplace bullying and unfair dismissal jurisdictions of the Fair Work Commission, to enable these kinds of conflicts to be managed in a proportionate and balanced manner.

Major court and tribunal decisions in Australia in 2021

This 2021 annual survey of Australia's significant court and tribunal decisions spans five key areas. First, the focus is on the High Court's clarification around how employment status is to be determined. Secondly, it examines decisions that have continued to arise out of the Coronavirus pandemic with respect to dismissals stemming from mandatory vaccination policies, an employer's liability in respect of an employee's death caused by Coronavirus, as well as a series of cases involving Australia's major airline, Qantas Airways Ltd (Qantas). Thirdly, consideration turns to developments in general protections and the first application for a stop sexual harassment order made to the Fair Work Commission. Fourthly, it reviews recent decisions concerning out-of-hours conduct and connection to employment. Finally, decisions giving rise to record penalties for contraventions of the Fair Work Act 2009 (Cth) (FW Act) are evaluated.

Unfair dismissal and the Coronavirus pandemic: Creative responses from Australia’s Fair Work Commission

This article reviews five key decisions of Australia’s Fair Work Commission, each of which concerns a claim for unfair dismissal under the Fair Work Act 2009 (Cth) by employees whose employment was terminated during the Coronavirus pandemic. Each decision demonstrates that the Commission has exercised its decision-making powers in a creative, yet highly responsive manner, during this global crisis.

Employers’ potential liability for family and domestic violence: An Australian overview

This article considers a range of legal issues that arise when family and domestic violence impacts upon the workplace. It examines the available data on the costs of family and domestic violence to employers and the community. It discusses the potential for employers to be affected by Australian State and Territory criminal and related laws that are intended to protect a person from family and domestic violence. Recent cases of discrimination arising from family and domestic violence are considered with some speculations as to other possible forms of liability for employers concerning work health and safety and workers compensation laws. The Australian Fair Work Commission’s determination of unpaid family domestic violence leave is also examined, as is the adoption of paid leave by some State and Territory governments and larger Australian employers. The article concludes with some reflections and speculations on how current laws may affect employers and what actions can be taken by employers to adopt supportive measures to protect employees. JEL Codes: K32, J28, L53

Analysing the employment impact of Sunday wage premiums reductions: Implications for minimum wage research

This article tests the employment impact of recent reductions in Australian wage premiums, or penalty rates, using surveys of 1828 employees and 236 employers in Retail and Hospitality sectors. In applying wage premium reductions for Sunday work, the national regulator, the Fair Work Commission, anticipated improvements in trading hours, employment and hours worked as a consequence. However, the authors found no statistically significant evidence for these predictions. Nor did difference-in-differences methods indicate substitution of workers subject to cuts for those who were exempt. The authors present the first systematic purpose-designed empirical evidence on the employment impact of wage premiums. In the absence of empirical evidence, the regulator had referred substantially to minimum wage research. This study also has implications for minimum wage research, and contributes to it with a novel methodology examining both aggregate hours and employment, comparing those subject to cuts with those not, and surveying both employees and employers.

Medico-legal considerations of mandatory COVID-19 vaccination for high risk workers.

Medico-legal considerations of mandatory COVID-19 vaccination for high risk workers.

The Australian labour market in 2020

This article provides a review of the Australian labour market in 2020. It outlines the monetary and fiscal responses to COVID-19 (including JobKeeper, JobSeeker and JobMaker policies), describes trends in employment, unemployment and underemployment and summarises the Fair Work Commission’s 2020 minimum wage decision. Data show that in the year to September 2020, total monthly hours worked fell by 5.9% for males and 3.8% for females. Job loss was proportionately larger amongst young people (aged 20–29) and older people. It was also disproportionately higher in female-dominated sectors such as Accommodation and Food Services. Unlike the earlier recession (1991), when more than 90% of jobs lost were previously held by males, a significant share (around 40%) of the job loss in the 2020 recession (year to August 2020) were jobs previously held by females. Notwithstanding a pick-up in employment towards year’s end, the future remains uncertain.

Legal Effects of Language Issues in Workplace Discourse: Evidence from Australia’s Fairwork Commission

Abstract The aim of this paper is to investigate the relationship between law and language in workplace discourse. To this end, a number of pronouncements issued by Australia’s Fair Work Commission – which mostly deals with employment litigation – are examined to see to what extent language-related problems affect both the employment relationship and the decision handed down by lawmakers when evaluating the cases submitted.

Access to Online Courts: Exploring the Relationship between Legal and Digital Capability

In this paper we consider the impact on access to justice of the increasing shift to online court and tribunal processes. We present new findings from a quantitative analysis of data from the Community Perceptions of Law Survey conducted by the Victoria Law Foundation in 2019 and a qualitative analysis of case law dealing with issues arising from the use of online application forms by the Fair Work Commission and Home Affairs. Our analysis explores: (i) the intersection of digital and legal capability, including the public’s level of comfort undertaking court processes or communicating with a lawyer entirely online, and (ii) how issues of digital/legal capability are handled by courts and tribunals when administering and adjudicating claims. Our analysis provides critical empirical insight into the way in which digital legal processes can undermine access to justice and identifies how a lack of digital capability can operate to impede fair outcomes for certain groups.

호주 공정근로위원회(Fair Work Commission)의 분쟁해결시스템과 ‘긱노동 배달 라이더’에 대한 근로자성 및 불공정해고 판정

본 논문은 긱 경제(gig-economy) 하의 플랫폼 노동 종사자 증가 등 노동시장 변화에 대응하는 호주의 최근 입법 및 정책의 동향에 대하여 공정근로법(Fair Work Act) 개정(2017년)과 공정근로위원회(Fair Work Commission, FWC)의 최근 판정을 중심으로 분석한다. 공정근로법에 근거한 독립기구인 공정근로위원회는 노동법원으로서 사법적 권한을 행사하는 동시에 행정위원회의 기능도 갖추고 있다. 공정근로위원회는 부당해고, 차별 등에 대하여 판정하고 구제명령을 내리는 한편 산업별 직종별 근로조건에 대한 재정(裁定, award)을 정한다. 공정근로위원회의 결정(decision)은 노사에게 법적 구속력이 있으며, 공정근로위원회를 거치지 않고 연방법원에 소송을 제기하는 것은 허용되지 않는다. 다른 나라와 마찬가지로 호주에서도 Uber, Deliveroo, Foodora, UberEats와 같은 긱경제 회사(gig-economy company)와 계약을 체결하고 스마트폰에 의한 다양한 앱에 기반하여 노무를 제공하는 긱노동 운전기사, 배달 라이더들의 근로자성 여부가 노동법적으로 문제되고 있다. 사실상 1심 법원의 기능을 하는 공정근로위원회는 기존에 축적된 근로자성 판단기준에 의하여 사안 별로 긱노동 배달 라이더에 대한 근로자성을 판단해왔다. 본 논문은 공정근로위원회의 분쟁해결시스템을 간략히 검토한 후, 최근 공정근로위원회가 긱노동 배달 라이더에 대하여 상반된 결론을 내린 두 개의 판정을 분석한다. 공정근로위원회는 Klooger v Foodora Australia Pty Ltd 사건(2018.11.16.) 에서 배달 라이더의 근로자성을 인정하고, Foodora에 의한 부당해고를 인정했는데, 이는 호주에서 앱 기반 플랫폼 노무종사자에 대하여 최초로 근로자성을 인정한 판정이다. 한편, 공정근로위원회는 Amita Gupta v Portier Pacific Pty Ltd T/A UberEats 사건(2019.11.18. 초심 / 2020.4.21. 재심)에서는 배달 라이더를 근로자로 인정하지 않았다. 공정근로위원회는 근로자성 판단을 위하여 노무제공관계의 모든 요소를 고려하는 전통적인 ‘다요소 접근법’(multifactorial approach)을 활용하고 있는데, 이는 우리나라 대법원 판례의 근로자성 판단기준과 유사하다. 공정근로위원회는 common law법리에 따라 ‘근로관계의 실질’을 판단하는 구체적 기준과 분석 기법을 발전시켜왔으나, 노동법의 법리와 긱 경제 하의 정부정책 사이에서 재량적 판단의 여지를 넓혀왔다는 비판을 받고 있다.

The Fair Work Wales report: a manifesto for all of us

ABSTRACTFair Work Wales, the report of the Wales Fair Work Commission, details the characteristics of fair work and recommends how to promote them. Its wider significance is that it offers a blueprint for what the UK should be doing—a challenge that could hardly be more fundamental. It is a timely reminder for employment relations teachers and researchers that the world of work may be changing but what they do and how they go about it really do matter.

The Australian labour market in 2018

In 2018, the Australian labour market continued to see only very moderate wages growth despite strong employment growth and low unemployment. This remains an international phenomenon with underlying economic and legal structural causes. Employment growth was concentrated in part-time jobs for both males and females, and in both manufacturing and white-collar industries. The Fair Work Commission increased the National Minimum Wage by 3.5%, a higher percentage increase than previous years but one that reflected higher growth in average earnings and inflation. The climate surrounding agreement making was less febrile than in recent years, with fewer high-profile attempts to terminate existing enterprise agreements. However, collective bargaining coverage in the private sector continues to decline to historic lows. Changes to skilled migration were the most significant shift in labour market policy in 2018, with a significant reduction in the number of permanent skilled migrants and a new temporary skilled migrant visa category with much stricter eligibility requirements. If sustained, this reduction may contribute to increasing pressure on wages in the years to come.

Major court and tribunal decisions in Australia in 2018

The year 2018 saw significant tribunal and court decisions concerning the definition of ‘casual’ for the purposes of the National Employment Standards, the obligations of labour hire employers, and the employment status of food delivery drivers in the gig economy. This review also covers a number of significant changes to awards made by the Fair Work Commission as part of its 4-yearly award review; a Full Federal Court decision about the extent to which a small group of employees genuinely agreed to approve an enterprise agreement. An unusual tribunal decision about an employee who was assumed to have a disability is noted. Finally, the review considers several significant judicial decisions on accessorial liability and penalites under the Fair Work Act.

Unions and collective bargaining in Australia in 2018

There is a storm brewing over the roles of unions and collective bargaining in Australian employment relations. Unions, frustrated with what they see as practical and legislative restrictions on protection of workers’ rights, seek to ‘change the rules’. Employers, on the other hand, have been successful in restricting or rolling back bargaining rights, supported by their associations, the Coalition government and an assertive interpretation of the Fair Work Act. Add to this the impending federal election and the scene is set for a tempest that could bring industrial relations back to the centre of Australian politics in 2019. The review explores the various elements contributing to the coming storm, including trends in union membership, structure and strategy. It also surveys trends in the number and coverage of collective agreements, wage outcomes and industrial disputes. Two idiosyncractically Australian versions of collective agreement making are also discussed: cooperative bargaining facilitated by the Fair Work Commission and non-union collective agreement making.

Measuring migrant worker rights violations in practice: The example of temporary skilled visas in Australia

Despite global attention to worker rights violations experienced by temporary migrants, we lack a clear evidence base to understand the extent and nature of these abuses. This article presents findings from a pilot of a Migrant Worker Rights Database. This pilot measures rights abuses of former Temporary Work (Skilled) visa (subclass 457) entrants to Australia from 1996 to 2016. This visa was the key formal temporary visa into Australia over this period. The pilot codes all available court cases that 457 visa holders brought before the national workplace relations tribunal, the Australian Fair Work Commission and relevant state and federal courts and tribunals, to capture legally recognised rights abuses that migrant workers experienced on the ground. It also codes coverage in three daily newspapers of these rights violations. This combined evidence base generates a series of rights violations, or ‘events’, that are then analysed to present patterns of rights abuses of migrant workers on the 457 visa. Key findings are that ethnic background and occupational status of migrants appear to inform the level of reported rights abuses. Further, legal representation of migrant workers assists in successful outcomes, particularly through the Fair Work Ombudsman – a government body empowered with enforcing compliance with workplace laws (197).

The Short Run Impact of Penalty Rate Cuts on Employment Outcomes in Retail and Hospitality Sectors in Australia

The issue of weekend penalty rates has been a contentious political issue in recent times. In its recent review of Modern Awards, the Fair Work Commission determined a reduction in Sunday penalty rates, arguing that this would result in increased employment and hours in Retail and Hospitality sectors. In this paper, we present a critique of the evidence before the Commission relating to employment creation. We also present survey findings of workers’ employment before and after the penalty rate reform. In the short run we find that there was no discernible positive impact on affected workers’ employment outcomes.

Regulating casual employment in Australia

The rise of precarious and non-standard working arrangements has received substantial attention in recent times. In Australia precarious work has been particularly associated with the phenomenon of casual work, defined as employment without the leave benefits provided by the National Employment Standards. Casual employment status is at the employers' discretion. It may be long term and involve short shifts of less than 4 hours. In the recent Modern Awards Review by the Australian Fair Work Commission, the Australian Council of Trade Unions submitted proposals to limit employers' ability to unilaterally determine the employment relationship and to reduce the degree of precariousness associated with casual employment. The Australian Council of Trade Unions sought the right for long-term casuals to convert to permanent employment and to extend minimum hours for shifts. This article surveys the evidence, primary and secondary, regarding the extent and nature of Australian casual employment, including its impact on flexibility, earnings security and productivity. In this context, we explore the implications of the Australian Council of Trade Unions claims and Fair Work Commission decision, and present data from a survey of casual employees regarding employment preferences. Whilst some employees prefer casual status, we find that many would benefit from protective regulations, and that most casuals support such regulation.

Employer and employer association matters in Australia in 2017

Employers saw some progress in their favour in 2017, including the Fair Work Commission's decision to cut penalty rates in various retail and hospitality awards, and the introduction of legislation to repeal the 4-yearly awards review process. But in spite of these advances, progress on their desired wholesale reform of Australia's industrial relations system had taken a back seat. Much of employer activity had been directed at fending off unions' claims for changes, such as the automatic conversion of casuals to permanent employment, paid domestic violence leave and for a high increase to the nominal minimum wage. Employers' defensive stance on the aforementioned matters was in contrast to the unions' more forceful positioning. Consequently, we argue that in 2017, as in the past few years, employers' remained frustrated at a lack of progress in reforming industrial relations in their favour.