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Reflections on 10 years of the Fair Work Act - Lawyers Weekly

By Alan J. McDonald

Reflections on 10 years of the Fair Work Act

he Fair Work Act has proved “functional and effective”, and should be celebrated by both sides of politics, argues one firm leader.

Speaking to Lawyers Weekly, McDonald Murholme managing director Alan McDonald (pictured) said the legislation, introduced in 2009, has “survived many prime ministers, parliaments and pressure groups”.

“There has perhaps not been a post-war period when employment and industrial relations have been so peaceful,” he posited.

“Employee relations have always required skillful negotiation. Indeed, those attributed with the highest status in post-war industrial law, Sir Richard Kirby and Bob Hawke won acclaim and esteem as mediators in this field. Regrettably, Bob Hawke then went possibly too far in disarming the labor movement during the 1980s and finally the pilots in 1990 so that he could enjoy smooth sailing as prime minister.”

It took two decades, and a very brave woman in Julia Gillard, “to empower all employees again through the Fair Work Act 2009 (Cth)”, Mr McDonald proclaimed.

“She sacrificed much for her reforming zeal to leave her fellow lawyers with workable laws and a sound legal framework. Typically, the reverse onus of proof, which is still not widely understood, gave employees a sporting chance in pursuing unlawful termination of employment cases.”

As a lawyer, Mr McDonald mused that he often finds it is “conservative Liberal voters who are the first to want to call upon the legal rights conferred” in Ms Gillard’s signature legislation for the benefit of their children.

The only criticism, he noted, was that the Fair Work Commission “has not allowed all parties the benefit of face-to-face conciliation conferences subverting them to telephone conversations which have had poor returns for many parties who take the process very seriously and engage representation”.

“Lawyers are slow to criticise a tribunal in which they appear especially when that tribunal has the right to deny them permission to appear,” he argued.

“It is reasonable for lawyers to need permission to appear to ensure that they do so in a constructive manner and only where it is to the benefit of the parties. The downside is the silence from the legal profession in offering constructive criticism where the process could be improved.

“Therefore, there has been an eerie silence in constructive criticism of the Fair Work Commission, but that is not the fault of the Fair Work Act 2009 (Cth),” he concluded.

Reference: ‘Reflections on 10 years of the Fair Work Act’, Lawyers Weekly, Thursday 25th July 2019.