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Nikhil Mishra: Amend section 143(7) of the Fair Work Act 2009 (Cth)

I would amend section 143(7) of the Fair Work Act 2009 (Cth) (‘FW Act’) regarding statutory exclusions from modern award coverage.

The modern Australian industrial relations framework is the result of a history of disputes between employers and employees (through their trade unions). A result of such an adversarial history was the role of the executive arm of government in arbitrating disputes in the event of no settlement. The arbitration of industrial disputes resulted in what are known as ‘awards’.

Award coverage has been established because of this extensive disputation. With the industrial tribunal ‘awarding’ pay and conditions to settle disputes. Introduced through WorkChoices legislation, statutory limitations have been placed on expanding coverage of employees under modern awards.

The limitations on expanding award coverage impedes employees as how and where work is performed is constantly changing. As certain professions or occupations see their work and conditions evolve, there may be a growing need for a minimum safety net of terms and conditions.

To ensure that the Fair Work Commission is able to meet the modern award objectives in this regard, section 143(7) must be amended to remove the reference to “nature” of an employee’s role. This will increase the possibility of award variation applications succeeding. 

Nikhil Mishra is an Associate in employment law.

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