In late 2018, the Morrison Government stacked the board of the Fair Work Commission (FWC) with business interests, thus ensuring it remained a ‘toothless tiger’:
The Australian can reveal that Jobs and Industrial Relations Minister Kelly O’Dwyer has appointed six new deputy presidents — including four who have worked directly for employer groups — who will each be paid $461,850 annually.
The decision, which has ignited tensions between the government and the commission, means the majority of tribunal members are now Coalition appointments with backgrounds either working for employer groups or as lawyers generally representing employers.
This came despite former Fair Work Ombudsman, Natalie James, admitting that wages theft is rife across the Australian economy, especially among migrant-heavy sectors:
…by the end of her five-year term as the Fair Work Ombudsman she had come to the conclusion underpayments were not only part of a culture in particular industries but that big businesses and even boards were asleep at the wheel when it came to workplace compliance…
“I’d sit across the table from senior people in franchisors who’d say ‘I’m surprised, I don’t know why this has happened’.
“I would think, well, you’ve got a very large proportion of visa workers and young workers in your network, and an unsophisticated set of franchisees, many also from a non-English speaking background – why are you surprised?”.
Shortly afterwards, law experts “sounded the death knell” for the FWC, noting that it has been “stacked beyond repair”:
“I’m a great supporter of the Fair Work Commission, but I fear this move may sound the death knell for the commission in its current form,” [University of Adelaide law professor Andrew Stewart] said.
“By appointing or promoting exclusively from one side of the IR divide, and ignoring the president’s views as to the agency’s staffing needs, the Coalition has treated the concept of an independent umpire with contempt…
Josh Bornstein, a principal lawyer with Maurice Blackburn, said the commission had been “stacked beyond repair”.
Now, an Australian employer group is pushing for “full scale” review of the FWC by the Productivity Commission, complaining that it is politicised and stacks full benches with Labor appointees:
The commission is made up of 23 Coalition appointees and 19 Labor appointees…
Even with an overall majority of Coalition appointees in 2019, Coalition members still only made up 36 per cent of full bench members – just slightly more than in 2018.
Full bench decisions in 2019 were also seven times more likely to be all ALP members than all Coalition members, with 49 matters all ALP-appointees and just seven matters all Coalition-appointees…
The Australian Mines and Metals Association has raised “serious concerns” with Attorney General and Minister for Industrial Relations Christian Porter about the commission’s performance, including claims new Coalition appointees have been treated “shabbily” and overlooked for key cases.
The industry body outlined its concerns in a letter to the minister last week that pushed for the Productivity Commission to review how public funding and resources for the commission “could better support positive workplace outcomes”…
Opposition industrial relations spokesman Tony Burke said the convention of appointing tribunal members from both sides of the bargaining table “has completely collapsed under this government”.
“The Liberals have been stacking the Fair Work Commission with their employer mates for years. In doing so they have damaged its reputation as an impartial, independent umpire.
“We urge the government to restore proper balance to the commission rather than undermine it.”
It is undeniable that the systemic rorting of Australia’s visa system and migrant wage theft is undercutting local workers’ bargaining power, pay and conditions.
How can the FWC properly police wage theft and work effectively when it is so highly politicised and stacked with political hacks?
An independent review by the Productivity Commission sounds like a great idea, even if the Australian Mines and Metals Association’s motivations are suspect. Drain the swamp.
