The 'Fair Work Act' in 2020 hindsight: The current multifaceted crisis and prospects for the future

Abstract

The Fair Work Act 2009 (Cth) has reached the significant milestone of 10 years in operation, and is the first Australian labour law regime to endure so long since the first moves away from conciliation and arbitration in the late 1980s. This Special Issue brings together expert analyses that address aspects of the Act that have received relatively little scholarly attention, such as the National Employment Standards, modern awards and union right of entry, as well as key issues including wages and agreement-making, enforcement of the Act and individual protections and the overall state of Australian unions. In this introduction to the Special Issue, we look back at the political and academic debates surrounding the Fair Work Act over its first decade of operation. This review reveals an apparent paradox - whereas academic analyses point to a 'multifaceted crisis' of wage stagnation, declining collective agreement coverage and underpayment of wages, two major reviews of the Act have concluded that the legislation is operating effectively to achieve its objectives. The other articles in this special issue identify shortcomings of the Fair Work Act and propose constructive improvements in their focus areas. However, we suggest that Australian labour law will effectively grapple with addressing the current crises only if debates interrogate the normative principles underpinning the law. In particular, we call for a fundamental rethink of Australia’s ‘enterprise bargaining’ model.