Fair Work Commission Reports Increase in General Protections Disputes

The Fair Work Commission Annual Report for 2014–15 ("Annual Report") notes a 17.5 percent increase in general protections disputes involving dismissal compared with 2013–14.

Under section 365 of the Fair Work Act 2009 (Cth) ("Act"), if a person believes that he or she has been dismissed in contravention of the general protection provisions, he/she can apply to the Fair Work Commission ("FWC") to deal with the dispute by way of a conference. If the dispute is not resolved during the conference, the FWC must issue a post-conference certificate under section 368 of the Act. The post-conference certificate enables the dispute to proceed to the Federal Court or Federal Circuit Court.

The Annual Report states that in 2014–15, the FWC received 3,382 general protections applications involving dismissal, compared with only 2,879 in 2013–14. This is consistent with longer-term trends, with 2,429 and 2,162 applications being received by the FWC in 2012–13 and 2011–12 respectively. Of the 3,475 applications which were finalised in 2014–2015, a post-conference certificate was issued in 1,073 cases.

General protections applications not involving dismissal increased by 12.5 percent in 2014–2015. This is also consistent with longer-term trends, with 598 applications made in 2011–12 compared with 879 in 2014–15.

The Annual Report also details the FWC's plans to introduce procedures to streamline the processing of general protections cases. This follows the success of a pilot scheme introduced in several states to improve the FWC's efficiency in dealing with general protections claims. Previously, FWC members had been conducting conferences to assist the parties to resolve general protections disputes. However, the pilot scheme involved training staff conciliators to conduct telephone conferences instead. In his foreword to the Annual Report, the president of the FWC, Iain Ross, stated that the pilot program has given members more time "to concentrate on more complex determinative matters and to list such matters more quickly".

The FWC will adopt these procedures for all general protections applications involving dismissal in 2015–16. This should improve the FWC's ability to deal with the steadily increasing numbers of general protection claims which have been observed in the past five years.

ABS Data Reveals Decline in Trade Union Membership

On 27 October 2015, the Australian Bureau of Statistics released the results of its 2014 Characteristics of Employment Survey ("Survey"), revealing a significant decline in trade union membership to 1.7 million Australians. The Survey found that in August 2014, only 15 percent of people (1.6 million) were trade union members in their main job, compared with 17 percent in August 2013 and 40 percent in August 1992.

Additionally, the Survey revealed that 8.4 million employed persons (84 percent) had never been a trade union member, while 1.5 million who were not currently trade unions members had previously been members. Tasmania had the highest level of union membership (24 percent) while Western Australia had the lowest proportion (13 percent).

The Survey revealed that the level of union density in the public sector was 39 percent (down from 41.7 percent in 2013) compared with 10 percent in the private sector (down from 12 percent in 2013). Further, the data showed that union membership was strongest in the Education and Training division (34 percent), followed by the Public Administration and Safety and the Electricity, Gas, Water and Waste Services divisions (both 31 percent). The industries with the lowest proportion of trade union membership were the Agriculture, Forestry and Fishing and Accommodation and Food Services divisions (both 2 percent).

Since the release of the Survey, the Australian Council of Trade Unions has questioned the accuracy of the data, claiming that its 46 affiliated unions reported membership of 1.8 million in October 2015.

House of Representatives Passes Amendments to the Greenfields Agreement Provisions in the Fair Work Act 2009 (Cth)

On 11 November 2015, the Fair Work Amendment Bill 2014 ("Bill") passed its final hurdle as the House of Representatives approved the Senate's amendments to the greenfields provisions in the Fair Work Act 2009 (Cth). The Bill is intended to ensure that enterprise agreements are negotiated efficiently. The amendments give employers greater power to resolve deadlocks and make unilateral deals.

Greenfields agreements, which are often difficult to negotiate, are enterprise agreements made between an employer and one or more unions, in circumstances where the employer is establishing a new enterprise. The amendments allow employers to submit their proposed greenfields agreements to the FWC for approval if a deal has not been reached with the union or unions after a six-month "negotiating period". This is intended to provide employers with a mechanism though which to resolve deadlocks and avoid unnecessary delays to project start dates. The FWC's approval nonetheless remains subject to a number of restrictions, including the "better off overall test" and good faith bargaining requirements.

The original Bill allowed employers to seek approval of their proposed greenfields agreements after a three-month negotiating period. However, following opposition from crossbenchers, the amendments agreed in the Senate extended the period to six months. The new greenfields provisions are subject to a two-year review period.