The Fair Work Act (Cth) was introduced by the Labor government in 2009 to replace the previous unpopular Work Choices legislation. The following is an assessment of the impact of this legislation on Australian workplace employees in two categories: the rights of employees and the protections afforded employees. For the purposes of this evaluation the most up to date Oxford Dictionary definitions have been used to define these categories. Through this, an employees rights afforded by the Fair Work Act refer to the “moral or legal entitlement to have or do something” (Oxford Dictionaries, 2010) with specific emphasis on the legal entitlement, whilst an employees protections afforded are “a legal or other formal measure intended to preserve civil liberties and rights” (Oxford Dictionaries, 2010). To understand the impact Fair Work Act had on Australia, an understanding on the industrial environment it was brought into will first be introduced explaining its origins, content and intentions. There will then be a discussion in terms of employee rights and protections and how they have been affected in reality compared to on paper followed by an assessment of the extent of these impacts on Australian workplace employees.
Background of the Fair Work Act
For several years before the introduction of the Fair Work Act national Australian election campaigns have been significantly focused on industrial relations issues (Cooper, 2009). Through this the Labor government and the different Union organizations of Australia, despite its popularity at inception, had repeatedly pointed out the flaws of the existing Work Choices system and many argued it created an environment where employers had an uneven amount of power over employees (Fenwick 2006; Stewart 2006). This lead to a political environment where industrial legislation was a particularly high-pressure topic with numerous conflicting parties to attempt to satisfy. Cooper (2009) discusses the ‘ambitious goals’ (p. 264) of the then Minister for Employment and Workplace Relations Julia Gillard to modernize the award system in a way that pleased both employees and employers.
The Fair Work Act sought to improve the rights and protections afforded to Australian workplace employees, one of the main articles designed to do this was the introduction of the National Employment Standards (NES). There are ten NES that were introduced as part of the Fair Work Act including a maximum on weekly hours worked, the right to flexible working hours when needed to care for a under school aged or disabled child and 24 months parental leave entitlement (full list Appendix A). The FWA also included causes on unfair dismissal, industrial action and the introduction of enterprise agreements to give employees more flexibility and say in their employment. The actual impact and change these new industrial legislations made however, is still highly debated by politicians and scholars alike.
Fair Work Act and Employee Workplace Rights
Improving the rights of Australian employees in the workplace was one of the central goals of the Fair Work Act as many Australians believed employers had to much power over their employees which forced them to agree to both hours and conditions that did not meet their expectations. Cooper (2009) discusses this as legislation prior to the Fair Work Act “undermined rights” of workers (p. 286) giving them significantly less in control of their own workplace choices and allowing unfair dismissals to go unchecked.
The right to organise was one of the more significant changes to employee rights under the new Fair Work Act. Previous legislation was particularly strict about union interaction with the workplace and it was discouraged by both industrial relations law and employers, however the Fair Work Act not only supports union involvement but specifically encourages it in two ways, the first being enterprise agreements (discussed in the protections...