Adaptive change. Justice Iain Ross AO President. Ai Group National PIR Group Conference 1 May 2017

Transcription

1 Adaptive change Justice Iain Ross AO President Ai Group National PIR Group Conference 1 May 2017

2 Touching the lives of most Australians FAIR WOR COMMISSION 2

3 A year in the life of the Commission Applications 16% Agreement approvals 23% Other 6% Dispute resolution Modern Awards 12% General protections 43% Unfair dismissals Minimum Wage 3

4 Decline in union density 60 Per cent : 50.0% : 24.7% 2012: 18.2% Source: ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 2013, Catalogue No ; ABS, Characteristics of Employment, Australia, August 2014, Catalogue No

5 Decline in union density Per cent : 50.0% : 24.7% *: 15.1% Source: ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 2013, Catalogue No ; ABS, Characteristics of Employment, Australia, August 2014, Catalogue No

6 Disputes, union density & industry size Average working days lost per year Manufacturing Mining Education; Health and community services Construction Manufacturing Mining Construction Education & training; Health and social assistance Union density (%) Mar-1993 to Dec-1996 Sep-2009 to Dec Source: ABS, Industrial Disputes, Australia, Dec 2016, Catalogue No ; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 2013, Catalogue No

7 Disputes, union density & industry size Average working days lost per year Manufacturing Mining Education; Health and community services Construction Manufacturing Mining Construction Education & training; Health and social assistance Union density (%) Mar-1993 to Dec-1996 Sep-2009 to Dec Source: ABS, Industrial Disputes, Australia, Dec 2016, Catalogue No ; ABS, Characteristics of Employment, Australia, August 2014, Catalogue No ; ABS, Employee Earnings, Benefits and Trade Union Membership, Australia, August 2013, Catalogue No

8 Working days lost per 1000 employees 300 Working days lost per year per 1000 employees CAA Act Average = IR Act Average = IR Act post 1993 Average = 95.2 WR Act Average = 54.8 Work Choices Average = 13.5 FW Act Average = Source: Fair Work Commission calculations based on ABS, Industrial Disputes, Australia, Dec 2016, Catalogue No Weighted averages are for the quarters covered by different employment relations arrangements.

9 Working days lost per 1000 employees 300 Working days lost per year per 1000 employees CAA Act Average = IR Act Average = IR Act post 1993 Average = 95.2 WR Act Average = 54.8 Work Choices Average = 13.5 FW Act Average = Source: Fair Work Commission calculations based on ABS, Industrial Disputes, Australia, Dec 2016, Catalogue No Weighted averages are for the quarters covered by different employment relations arrangements.

10 Decline of collective, assent of individual 35,000 Workplace Relations Act Work Choices Fair Work Act 30,000 25,000 20,000 15,000 10,000 5, Collective matters Individual matters 10

11 Decline of collective, assent of individual 35,000 Workplace Relations Act Work Choices Fair Work Act 30,000 25,000 20,000 15,000 10,000 5, Collective matters Individual matters 11

12 Decline of collective matters Mean: Mean: Mean: 56 Mean: Sep-15 Dec-15 Mar-16 Jun-16 Sep-16 Dec-16 Mar-17 Applications to deal with a dispute (ss. 526, 739) Orders relating to industrial action* (excl. s.437) Protected action ballot orders (s.437) Applications to stop industrial action (ss ) 12

13 Decline of collective matters 600 Average over financial years Disputes Industrial Action - Protected Industrial Action (s. 437) Industrial Action - Unprotected

14 Adaptive change: The story so far General protections conciliations Anti-bullying triage of applications Appellate jurisdiction permission to appeal reforms Enterprise agreements agreement approval triage Benchbooks for all major matter types Protected action ballot orders digitizing and streamlining applications Wifi access Free and fast access to audio files of hearings Pro bono advice & Workplace Advice Clinics Improved performance benchmarks 14

15 Adaptive change: Reducing the regulatory burden Small business engagement: Bruce Billson, former federal Minister for Small Business User experience design research: small/medium sized employers who have recently responded to unfair dismissal claims Development of support materials: providing guidance and support across all elements of the agreement-making process Plain language redrafting of modern awards 15

16 Reducing the regulatory burden: Plain language redrafting of Modern Awards Key Insights - Summary Use terms that are easy to understand: Text heavy Difficult to navigate Complex structure Constantly changing Unwanted information Times New Roman font Ambiguous Too long Take a tea break instead of partake of refreshment Be provided an allowance for meals and accommodation not a victualling allowance Use before the end of the break instead of prior to the expiration of such break Density of content Cross over with other docs Wrong focus Jargon / legalese Vague Complex sentences Do not use archaic language such as: the abovementioned the aforesaid herein, hereinbefore therein, thereof, thereto thereupon. 16

17 Reducing the regulatory burden: Making enterprise agreements Step-by-step guide to making single-enterprise agreements Single-enterprise legislative checklist Enterprise agreement benchbook Guide to the NERR 17

18 18 New Approaches

19 New Approaches: Case studies Maritime Union of Australia and Go Offshore Pty Ltd Protracted industry-level negotiations over 3 years Significant litigation in both the FWC and Federal Court GO and the MUA lodged a New Approaches form F79 in Nov 2016 An agreement was reached on 3 April 2017 The Agreement has passed preliminary approval and is expected to be approved on 1 May 2017 The ASU (NSW and ACT Branch) and Sydney Water New Enterprise Agreement negotiated through IBB in 4 days to reduce labour costs and retain in-house workforce Maritime Union of Australia and Patrick Stevedoring Holdings Pty Ltd (Patrick Bulk Port Services) now LINX Cargo Care Group Parties are presently engaging in IBB and collaborating to rewrite Enterprise Agreement in plain language 19

20 Where next? Reviewing allocation of workload Sitting on weekends and evenings Reviewing how parties interact with the Commission, including where & how the Commission sits Online dispute resolution & ecase Reviewing unfair dismissal pilots Enterprise Agreement applications: Bargaining calculator Smart form to replace F16 & F17 Agreements in progress webpage Piloting initiatives from consultation with small business employers and their representatives Reviewing KPI framework 20

21 Engagement Harvard master class in advanced negotiation Future of Work forums Workplace relations education series The Harvester Case revisited University of Melbourne interest based bargaining lecture Quarterly Practitioner Updates 21

22 22 Adaptive change

23 23 Adaptive change

24 Questions