Video Webcast BRR Legal Brief

Good afternoon and welcome to the BRR Legal Brief, where we’re looking at the major legal issues affecting Australian business.  I’m David Bushby and today we’re talking about the Government’s highly anticipated review of the Fair Work Act, and here to discuss the major issues and what we can expect from the Government’s review is Ben Dudley from Freehills, welcome Ben.

Thanks David.

Ben if we can just kick off with the review process.  How is that being conducted; and is the whole Act up for the review?

Sure.  So the Government has recently appointed three experts to conduct a review of the operation of the Fair Work Act over the last couple of years.  There’s an economist, a lawyer and an academic, so we’ve got Dr John Edwards, who’s currently a member of the Reserve Bank Board, spent a lot of his career at HSBC.  We’ve also got the Honourable Michael Moore, who used to be a judge of the Federal Court and has also spent many years on the Industrial Relations Commission.  And the third member is Professor Ron McCallum, who’s a very eminent academic and specialises in industrial relations and employment law.  So those three panel members if you like have been tasked with reviewing the operation of the Act, based on gathering evidence about people’s experiences with the Act over the last couple of years, and they’ll be looking at whether any improvements can be made to the operation of the Act based on that review.  Whether the whole of the Act is open for review, yes it is, there’s a wide ranging set of terms of reference, the only thing that is excluded is a review of the operation of a modern awards which is subject to a separate process by Fair Work Australia.

Well just looking at the review of the Fair Work Act, there still is a lot there to be considered by the panel.  What do you think will be the key issues that businesses will be pushing for change on?

I think businesses are interested in a couple of things out of industrial relations legislation like the Fair Work Act.  I think the primary thing that they’re interested in is having a set of provisions that helps them deliver or drive productivity in their businesses and allows them to be flexible.  That’s a really important issue in the current environment.  We’ve had things like the GFC a couple of years ago, we’ve got the European crisis in very recent times so what a lot of businesses are interested in is being nimble, being able to react to changes in the competitive environment and what’s going on.  So I think a lot of businesses will be interested in improvements that can be made to the operation of the Act which allow them to drive that productivity in the operation of their businesses.  I think the second major thing that business will be interested in is really a process issue, that’s about really the way in which enterprise bargaining has been occurring under the Fair Work Act and there are two aspects to that.  The first is there’s a set of good faith bargaining obligations in the Fair Work Act, employers have at times struggled with those, they’ll be interested in seeing whether any improvements can be made so that the process of bargaining can happen efficiently.  And the second aspect to that overall process piece is really to do with industrial action, we’ve seen a real uptick in industrial action in the last six or 12 months, employers, businesses will be interested in whether improvements can be made to protect their business as much as possible from the crippling – sometimes crippling effects of persistent industrial action.

Well it’s certainly been a huge issue and another issue is the announcement that the review process will be conducted privately behind closed doors.  That’s attracted a lot of criticism, do you think that criticism is fair; and does it really make a different whether the review process is public or private?

Now look I don’t think that criticism is entirely fair.  The process does involve a number of public aspects.  So it’s not particularly unusual for a review like this to be conducted in the way that is proposed by this panel, and that will involve interested parties making submissions, those submissions will be published on the review website, other stakeholders will be able to see those submissions and put in further submissions in response.  The panel will also be conducting a series of meetings with key stakeholders now yes they’re not public hearings but as I said it’s not unusual for a review of legislation to be conducted in this way.  Whether it makes a difference at the end of the day is a difficult question to answer but I don’t expect that the way in which this review is conducted will deliver a significant difference in the outcomes.

Well I guess you’ve touched on this point a little bit, how can businesses out there actually get involved in the review process?

There’s really a three stage process if parties, businesses, unions want to be involved in the review.  The first is there’ll be a paper published this week which will be a call for submissions from the panel that will set out the terms of reference to things that the panel is interested in hearing about.  So employers, businesses will have about four weeks in which to prepare a submission and send that through to the panel.  As I said those submissions will be published, there’ll be a two week opportunity when they’re published for everyone to have a look at the submissions, see what other people are saying and put some further submissions in.  During that period as well the panel will also be conducting meetings with key stakeholders so I think it’s important that if you do want to be involved in the process you do make a submission, if you want to be involved in the meetings with the panel that you make that pretty clear upfront in the written submissions that you would file.

And Ben just finally when do we expect the panel to actually come to a decision on its findings, and where to from there; what are the next steps?

Well the panel’s due to provide a report back by 31 May, so end of the May’s the deadline for the report.  That report will be provided to the Government, so to the Minister, Bill Shorten and from there what we can expect is that the Minister and other members of the Government will consider the report, the findings, the recommendations when they look at whether changes need to be made to the Act to improve its operation.

Well we’ll certainly keep a very close eye on it as it unfolds with the review panel and of course the highly anticipated recommendations it will make.  Thanks again for your insights today Ben.

Thanks David.

And viewers thank you for tuning in, look forward to having your company next week for the BRR Legal Brief.