Tuesday, 29 May 2012

More wrong with the FWA than just its name


There is a lot more wrong with the entity Fair Work Australia (FWA) than its name. As the new president, Ian Ross, said yesterday before a Senate committee, people cannot distinguish between the Fair Work Act and Fair Work Australia, which comprises a tribunal which used to be called the Australian Industrial Relations Commission (AIRC), and the compliance organisation, otherwise known as the administration, which is run by a general manager.

The president has no power over the general manager.

The use of the words 'fair work' is just an example of Labor Party spin. There is nothing particularly fair about the FWA. As Ross admitted, there are "legitimate questions" about its behaviour and you can be certain it is overmanned and unable to perform its functions under the legislation as demonstrated by the fiasco of the Thomson affair.

When I was the minister for industrial relations, I organised redundancies for members of the AIRC. Like many government organisations, the more people you appoint the more work they find themselves, and FWA is no different.

The FWA was introduced by Julia Gillard. An unintended consequence of the new legislation opened the way for the president of FWA to attend and answer questions in a Senate committee. The only person who realised what had happened, and the opportunity it afforded the Senate, was Senator Mary-Jo Fisher, who then initiated the Senate request to the president to appear before the relevant Senate committee.

The former president appeared three or four times but always complaining his appearance was beneath his status and then campaigned behind the scenes so that he would not have to appear again. Neither the government nor the Greens were prepared to uphold the rights of the Senate. As a result, until the Thomson matter, it appeared that the president would not appear again.

The question now for the new president is whether or not he is prepared to continue to appear before the Senate again. He ducked the question when asked yesterday by Senator Fisher. There is no doubt there is a legal requirement to attend but only if requested.

Mr Ross says the tribunal "must become more efficient and accountable" and "the current process has significantly damaged the tribunal's reputation". These are significant matters which should be the subject of ongoing Senate interest. Therefore the first test of Mr Ross will be his willingness to voluntarily attend future Senate committee meetings. He says FWA is a 'justice' institution but of course it is not a judicial institution and should not be given a waiver from public scrutiny.

It is now obvious to everybody that the administration part of FWA is simply not fit for purpose. This should come as no surprise except that the situation has obviously got much worse in recent years. Too many working in administration have strong links to the union movement and have failed to properly pursue administrative failures by unions. Some years back it used to be said that one state section was closely linked to the Socialist Left.

The only way to really clean up the situation would be to start again with a new organisation with new people and with a very clear set of objectives and a rigorous system to audit the implementation. With this new start, a minister should have responsibility and thus accountability to the Parliament in the same way that the Treasurer is ultimately responsible for the management of corporate compliance. Needless to say, as announced by Tony Abbott sometime ago, the penalties for failure to meet basic requirements of reporting need to be significantly increased.

Mr Ross also says that a more effective complaints mechanism should be put in place to deal with complaints against members. But he is wrong to suggest that the tribunal within FWA should be treated the same as judges.

Firstly there should be a realistic appreciation of the quality of some of the tribunal members. I have notes made by me of comments made by a former AIRC president to the effect that some members were basically duds. You cannot have a fair system unless there are minimum standards required of tribunal members. If minimum standards are not maintained then there should be a way of getting rid of people who are not up to scratch.

Of course, it would help if the duds were not appointed in the first place, and while both sides of politics can be criticised for appointments, it is noteworthy that literally all recent appointments have been union people. There is nothing wrong with union appointments, but when nearly all the appointments come from the one grouping, it's only reasonable to assume that merit has played little part in the choice of new members.

Mr Ross is a member of the Federal Court. When his predecessor was appointed as president of the AIRC, he was also appointed as a member of the Federal Court. There was only one reason for doing so. His concern and mine was that if he did not hold a commission with the Federal Court, then an incoming Labor government could engineer his removal by way of establishing a new body in the same way that Labor did with Justice Staples.

We made him a member of the Federal Court so that he had somewhere to go if needed. We did not appoint him as a member of the Federal Court so as to give some additional status to the AIRC. FWA does not need more status; the world has changed, and the days that senior people in the commission were judges or their equivalent are well and truly over.

Mr Ross refuted claims made by Craig Thomson against FWA and in particular in regards to the vice president. Thomson made a claim, but without anything to back up his statement, so the matter ends there.

But it is true that Mr Lawler was reported in the press (The Australian, February 6, 2012) as having written to New South Wales Police investigating alleged corruption in the HSU "making allegations of criminal conduct".

Any citizen can write to the police, but when that citizen is the vice president of FWA and the partner of a key figure within the HSU, a wiser person might refrain from being involved. And a new president might make the point to his new colleagues, as he said yesterday, "The independence and standing of the tribunal established by the Act is central to the operation of the Act and the attainment of Parliament's objectives."

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