The shaping of labour law legislation : underlying elements of Australia's workplace relations system

Dedication
Full Title
Copyright
Foreword
Acknowledgments
Table of Cases
Table of Statutes
Table of Abbreviations
Table of Contents
	Part 1 Introduction
		Chapter 1 Introduction
			History
			Current position
			Structure of book
			Certain qualifications on nature of research and issues
	Part 2 Compulsory Arbitration
		Chapter 2 The Core Elements of the Traditional System of Compulsory Arbitration — As Identified in Research and Literature
			Introduction
			Identifying core elements of Australian traditional industrial relations system
			Deriving core elements of Australian industrial relations system from practical operation of system
				Relationship between statutory tribunal (or ‘judges in industry’) and public interest
				Protecting the weak?
				Privileged role for unions and its relationship to public interest
				Identifying and defining core elements — summary
			Interrelationship between core elements under traditional Australian industrial system
				‘Public interest’ and its relationship to protecting the weak
				Role of independent statutory body — and its function of interpreting public interest
			What was meant by public interest under traditional Australian system?
			Role of unions under traditional Australian system
			Changing system — challenges to compulsory arbitration system in late twentieth century
			Summary
		Chapter 3 The Legal Framework and Operation of the Australian System from 1904 until 1993 — An Analysis of the Practical Application of the Core Elements
			Introduction
			How did original legislation deal with core elements?
			Core elements of traditional Australian industrial relations system
				Public interest — protecting the weak
					Payment of fair and reasonable wages as a component of ‘protecting the weak’ and serving the public interest
				Public interest — development of concept under federal legislation 1904–93
				Analysis of public interest concept in tribunal decisions
				Statutory body with compulsory powers — and its relationship with protecting the weak
					Practical role played by statutory tribunal
					Determinations of the statutory tribunal — awards serving ‘public interest’?
					Tribunal and its relationship with other core elements of traditional industrial relations system
				Role of unions in federal system — 1904–93 (and relevant public interest considerations)
				Operation of system and its emphasis upon fairness — was this linked to questions of public interest and protecting the weak?
			Challenges to operation of system from 1960s to 1980s — continuation of core elements
			Tentative transition to enterprise bargaining via accord and IR Act
				Policy development issues — what did transition to enterprise bargaining mean for core elements of system?
				Significance of national wage decisions — how were core elements accommodated?
			Statutory industrial agreement provisions — what statutory support existed for collective bargaining (or enterprise bargaining) before 1993?
				Agreement-making under C and A Act — 1904–88
				Significance of s 115 agreements under IR Act
				1992 Amendments (Div 3A, Pt VI of IR Act)
			Conclusion
	Part 3 Enterprise Bargaining
		Chapter 4 Innovations Made under the IR Reform Act — Change within a Familiar Framework (1993–96)
			Introduction
			References to role of tribunal, ‘protection of the weak’ and public interest in IR Reform Act
				‘No disadvantage’ test and provisions dealing with vulnerable employees
			Role of unions under new bargaining regime in IR Reform Act
			Changing role of tribunal in enterprise bargaining environment
				Tribunal’s bargaining jurisdiction
				Industrial action by unions
				Tribunal’s wage fixing rulings
			Conclusion
		Chapter 5 Howard’s ‘Half-Way House’ — The Workplace Relations Act 1996 (1996–2005)
			Introduction
			Diminution in statutory tribunal’s powers — or was it retained as core element of system?
				Tribunal’s role in serving public and protecting rights of weak
			Bargaining system under the WR Act — questions about role of unions, statutory tribunal and public interest
			Public interest issues under WR Act and relationship with ‘no disadvantage’ (and protection of weak)
			Role of unions under WR Act
			Summary
		Chapter 6 The Impact of Work Choices — Radical Change but Core Values Remain in Place (2005–07)
			Introduction
			Background to the work choices legislation
			Role of awards — what did this mean in terms of ‘protecting the weak’ (and securing the public interest)?
			Institutions — role of statutory tribunal
				Australian fair pay commission — new wage fixing body
				AIRC’s mediation jurisdiction
				Role of the statutory tribunal under work choices: a summary
			Agreement-making under work choices
				Agreement-making jurisdiction shifted to office of employment advocate
				Ongoing role for AIRC in bargaining process?
				Agreement-making under work choices — conclusion
			Unions under work choices — limits and restrictions placed upon them
			Status of public interest under work choices
			Did work choices go too far by undermining ‘Ideals’ of compulsory arbitration system?
			Conclusion
		Chapter 7 Enterprise Bargaining under the Fair Work Act — Enduring Scope for the Tribunal, Unions, the ‘Public Interest’
			Introduction
			Underlying ethos of FW Act
			Agreement-making under Fair Work Act
				Application of BOOT — is this a public interest requirement?
			Bargaining process — good faith bargaining provisions, power of unions and new opportunities for tribunal to exercise arbitral power
				Do good faith bargaining provisions enhance power of unions?
				Good faith bargaining requirements
				New scope for statutory tribunal to exercise arbitral power
				Arbitration in relation to ‘intractable bargaining disputes’
				‘Safety net’ underpinning bargaining and role of statutory tribunal — how well does FW Act protect the weak?
			Return of statutory tribunal to position of authority within system
			Public interest issues under FWA
			Role of unions under FW Act
				Changes to role of unions as ‘bargaining representatives’ under FW Act
				Right of entry for unions
				Recent issues concerning trade union governance
			Summary and conclusion
		Chapter 8 Ongoing Influence of Core Elements of Traditional Industrial Relations System — A Description of the Statutory Tribunal’s Power to Make Workplace Determinations
			Introduction
			Tribunal’s power to terminate or suspend serious industrial action
				Industrial action in essential services — evolution of relevant statutory provisions
					IR Reform Act
					WR Act
					Work Choices
					FW Act
				Review of provisions in FW Act
				Qantas dispute (its relationship to termination of industrial action provisions in FW Act)
					Background to dispute
					FWC’s decision to terminate industrial action
					TWU arbitration and public interest questions
					AIPA arbitration
					Issues arising from qantas dispute — role of tribunal
					Other decisions dealing with FWC’s power to terminate or suspend industrial action
					Issues arising in industrial-action workplace determination — ongoing role for statutory tribunal, unions and public interest under FW Act?
					Productivity commission discussion of industrial action workplace determination provisions
			Low-paid bargaining scheme under Fair Work Act
				Introduction to low-paid bargaining scheme — mechanism to ‘protect the weak’?
				Analysis of low-paid bargaining provisions
					Obtaining a low-paid authorisation
					Special low-paid workplace determination
					Agreement-making process
				Background to low-paid bargaining scheme
					Origin of low-paid bargaining provisions
					Mechanism to achieve low-paid agreements — multi-employer agreements
					Policy issues under low-paid bargaining provisions
					Role of unions
				Low-paid provisions in operation — Aged Care Workers case
					Background to claim
					Issues in aged care workers’ claim
				Recent applications — can provisions work in practice?
			Conclusion — four core elements of Australian industrial relations as utilised in provisions dealing with industrial-action workplace determinations and low-paid bargaining scheme
		Chapter 9 The Continuing Debate — What Role Does the Productivity Commission Believe the Core Elements Play (or Should Play) in the Present Workplace Relations System?
			Introduction
			Productivity commission and its attitude to role of tribunal
			Other core elements in traditional industrial system — public interest and low paid
			Productivity commission and questions of ‘fairness’ — has ‘fair go’ been abandoned?
			Does productivity commission report make recommendations that may potentially downgrade position of unions?
			Internal dissent and departures from tribunal
			Conclusion
	Part 4 Comparison with New Zealand
		Chapter 10 The Position of New Zealand — Similar but Different
			Introduction
			Background to New Zealand’s compulsory arbitration system — and its gradual adoption of a contractualist framework
				Adoption of compulsory arbitration in New Zealand
				Statutory provisions concerning bargaining
				Passage of IR Act (NZ) — shift from underlying compulsory arbitration system?
				Unions and New Zealand system
				‘Public interest’ issues
			Review of ‘small differences’ between Australian and New Zealand systems — and assertion of ‘gradual transition’ to changes made by ER Act (NZ)?
			Aspects of 1987 legislation — deregulatory legislation introduced by labour government
			Impact of EC Act (NZ)
				New contractualist model — how was this achieved?
				Aspects of EC Act (NZ)
			Labour’s return to power — ER Act
				Labour’s legislation — difficulty in changing path
				Principle of good faith
				What does ER Act (NZ) achieve?
			Conclusion
	Part 5 Review
		Chapter 11 Review and Challenges — Will the Underlying Core Elements Continue to Shape the Labour Law System?
			Introduction
			Identification of core elements of australia’s industrial system and their significance in enterprise bargaining era (1993–2007)
			Core elements of traditional industrial system and their application through to FW Act — views of labour law and industrial relations commentators
			Core elements of traditional industrial system as they apply under FW Act — summary and review of chapters 7 and 8
			Recent challenges and challenges ahead
			Final word
Bibliography
Index