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Fair Work Act – How to stay Fair! Anthony Powter – Legal Counsel Workplace Relations Australian Industry Group

Fair Work Act – How to stay Fair! Anthony Powter – Legal Counsel Workplace Relations Australian Industry Group. Laws are still unsettled. Laws not proved to be as problematic as feared, but: Laws are still unsettled – very few Federal Court Decisions

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Fair Work Act – How to stay Fair! Anthony Powter – Legal Counsel Workplace Relations Australian Industry Group

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  1. Fair Work Act – How to stay Fair!Anthony Powter – Legal CounselWorkplace RelationsAustralian Industry Group

  2. Laws are still unsettled • Laws not proved to be as problematic as feared, but: • Laws are still unsettled – very few Federal Court Decisions • Almost all members appointed under FWA have union background – issues over time • Some concerning developments within FWA happening “under the radar” – eg. Undertakings

  3. Laws are still unsettled (Contd) • Focus of many unions has been on imposing further restrictions upon employers (eg. contractors, labour hire, individual flexibility arrangements.) • Inconsistency with approaches by FWA

  4. Agreement Making Activity • Increased number under FWA • Flexibility terms not delivering as intended • Undertakings upon Employers • Compulsory Arbitration – Government’s Fair Work Principles

  5. Agreement Making Activity (contd) • Key Bargaining Decisions of FWA • Bargaining Representatives - ASU v Qld Tertiary Admissions Centre [2009] FWA 53 • Restrictions on Contractors/Labour Hire - Airport Fuel Services v TWU [2010] FWAFB 4457 • Flexibility terms in Agreements – TriMas [2010] FWAFB 3552 • Right of Entry Clauses – Australian Industry Group v Dunlop Foams [2010] FWAFB 4337

  6. Agreement Making Activity (Contd) • Approval Procedural Requirements - McDonald’s Australia Pty Ltd v SDA [2010] FWAFB 4602 • Better Off Overall Test - Bupa Care Services [2010] FWAFB • Introduction of Change during Bargaining – LHMU v Coca-Cola Amatil [2009] FWA 153 • Paid mass meetings during Bargaining – LHMU v Foster’s [2009] FWA 750

  7. Termination of Employment • FWA focus on ‘proper process’; many cases finding ‘valid reason’, but process has been determined harsh, unjust or unreasonable • Minefield for Employers - new process, inconsistency in approach by members of FWA

  8. Termination of Employment (contd) • Recent Decisions of FWA • Establishing exceptional circumstances – Penrith Hotel Motel v Smithers [2010] FWAFB 7251 • Breach of Drug and Alcohol Policy Fair – Gane v Rail Corporation NSW FWAFB [2010] 3788 • Breach of OHS policies – Norske Paper Mills [2010] FWA 883, Butson v BHP Billiton Iron Ore [2010] FWA 640, GlaxoSmithKline Aust v Makin [2010] FWAFB 5343

  9. Top 10 Tips – How to stay Fair! • Be mindful of events under the radar - “Undertakings” & “heavy handedness” in EBA’s • Individual Flexibility Arrangements - ensure flexibility stays an option – Recognise right of employees choice • Pre-lodgment EBA procedures must be followed – no tolerance for error • Redundancy – “Genuine” test harder to prove • Unlawful termination – Injured workers pitfalls

  10. Top 10 Tips - How to stay Fair! • OHS Breaches - fair & valid basis for termination • Executive Termination – Common Law actions • Stay focused, be prepared & get the facts before acting • Never underestimate the power of conciliation & a consensus agreement for an outcome • Trust your instincts and act on them!

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