Five big ways the IR world has changed

The industrial landscape changed on 1 July 2009 with the new Fair Work Act (FWA). It will change further on 1 January 2010 when the NES and modern award provisions are rolled out. But how big is the change? Is it seismic or apocryphal? The answer is big and getting bigger – much like a tidal wave.

Here are the five big changes:

1. There has been an immediate upsurge in union industrial action and the action is commencing shortly after agreements expire. This can be contrasted with the “WorkChoices” regime where the capacity to take action did not materialise until months after the expiry of the collective agreement and the employer’s capacity to respond was not as attenuated.

2. The industrial action taken by unions is often more carefully designed to hurt business but impact a little on employees’ back pockets. For example, paper work bans, overtime bans, short strikes, etc. Such an action has a significantly larger impact upon the business’s financial circumstances than the employees. The result has been a quicker escalation of employer response action such as stand downs and lockouts. The battle is coming quicker, the fighting is more strategic and the atmosphere is more combustible.

3. Unions are using ‘potential’ breach arguments to respectfully and aggressively enter sites that have been transitioned from AWA/ITEA culture to a non-union collective agreement just prior to the FWA becoming law so as to undermine the business/employee compact.

4. Unions have started to use the “Adverse Actions” claims in the Federal Court to stop the dismissal of union delegates. As indicated in previous articles, the Adverse Action claim, with its reverse onus cast on employers and threats of penalties will inevitably become a tool in the union toolbox around bargaining time – particularly when wayward delegates are terminated. Fair Work Australia cannot prevent the termination – the Federal Court can in an Adverse Action claim.

5. Unions have sought to prevent employee’s “doing deals” with their employers using the Good Faith bargaining provisions. Fair Work Australia has supported the union intervention – stopping votes so further meetings between the employer and the unions can follow.

The above changes reflect a quantum shift in the industrial powers of unions. A shift which will grow as case law expands what “Good Faith Bargaining” is and unions become more acquainted with the weapons at hand in the FWA.

The only hurdles to this growing wave is the weakening base of unions in Australia and the possibility that the case law that evolves around the FWA will not be as daunting as in the US, Canada and New Zealand.

As a business your response must be:

1. Think strategically well before the bargain and engage your employees.
2. Prepare for bargaining meetings, control documents and understand the tools in your legal toolbox.
3. Always act honestly, fairly and in a proportionate manner.
4. Do not be afraid of seeking Fair Work Australia’s help if the bargaining turns bad.

Otherwise – watch this space for how the landscape changes and sculpt your responses accordingly.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.