Fair Work Australia: The Commission Reborn? 1

The Commission Marginalized

By the time Kevin Rudd and Julia Gillard came to rewrite Labor's industrial relations policies in early 2007, they were faced with a veritable ‘alphabet soup’ of regulatory bodies. The AIRC and its support agency, the Australian Industrial Registry, had survived the Howard government's first wave of changes in 1996 and the more extensive Work Choices amendments of 2005. But the Commission's powers had been significantly diminished (Forsyth, 2006). Its general capacity to conciliate (let alone arbitrate) industrial disputes had been removed, and it could vary awards only in limited circumstances. Its role in regulating bargaining was largely confined to halting industrial action. While it could still resolve disputes as to the application of workplace agreements, it had to compete for that role with ‘private providers’ of dispute resolution services. Its relevance as a dispenser of ‘industrial justice’ in relation to the termination of employment had also been reduced by the exemption from unfair dismissal claims given to businesses with 100 or fewer workers.

Most importantly of all, perhaps, two key functions had been removed. The power to review and approve collective agreements had survived the initial Howard reforms, although the task of processing most individual Australian Workplace Agreements (AWAs) had been allocated to a new body, the Office of the Employment Advocate (OEA). Under Work Choices, however, all agreements went to the OEA. The OEA had proved its worth to the Howard government through its enthusiastic promotion of AWAs and its willingness to work with ‘industry partners’ to develop or approve template agreements that could be efficiently deployed. Unlike the Commission, the OEA operated entirely in private and issued no reasons for the decisions made by its ‘faceless’ staff – decisions that were also not subject to any appeal process, although in theory they could be subjected to judicial review by the higher courts. The removal of the no-disadvantage test and the capacity of agreements to take effect on lodgement meant in any event that the OEA had relatively little to do in relation to most agreements.

The OEA was itself replaced in July 2007 as part of the Howard government's bid to allay community concerns over the impact of Work Choices on vulnerable workers. Its successor was the Workplace Authority, which dealt with agreements in the same private fashion as the OEA – except that it was now required to vet each and every instrument against a new ‘fairness test’. Because this test was imposed with retrospective effect, the Authority already had a two-month backlog of agreements to review by the time it opened its doors. With AWAs now coming in at a much higher volume than under the pre-Work Choices system, the Authority simply could not cope. Despite an injection of new staff, there were significant delays in processing agreements (Sutherland, 2009).

The second key function removed from the AIRC by Work Choices was wage fixing. The task of setting and adjusting most minimum wage rates went to another new institution, the Australian Fair Pay Commission (AFPC). Much was expected of this body, whose five members were appointed on fixed-term contracts and included two economists with well-known views about the operation of the labour market (see Gardiner, 2007; Waring et al., 2006). In fact, despite repeatedly stressing the ‘sensitivity of low-paid employment to changes in wage levels’ ² , it fell into the pattern of granting annual wage increases that were broadly comparable to the AIRC's ‘safety net’ rulings of the previous decade. The only real departure came in its last decision in July 2009, when it justified the imposition of a (low-paid) wages freeze by reference to the uncertainties created by the global financial crisis. By then, it had settled into a method of operation that included, on the one hand, a willingness to commission useful research and analysis from independent experts, and, on the other, an aversion to holding anything resembling a public hearing. Although the Fair Pay Commission arranged meetings at which it could listen to the views of stakeholders, it relied primarily on receiving written submissions. Much of the information it received was posted on a very informative website.

Finally, in terms of the institutional arrangements that confronted Labor in early 2007, there were two other agencies, each responsible for investigating and prosecuting non-compliance with workplace laws, but very different in their outlook and public profile. The Office of Workplace Services had replaced the old Arbitration Inspectorate in 1996 and was just beginning to benefit from the injection of resources that would allow it (and its successor, the Office of the Workplace Ombudsman) to make a more visible and active contribution to the enforcement of awards and other industrial norms than had ever been the case with earlier inspectorates (Hardy, 2009). Far better known at this point was the Australian Building and Construction Commission (ABCC), created in 2005 in the wake of the Cole Royal Commission to restore ‘law and order’ to the building industry (see Forsyth et al., 2007).

The ‘Forward with Fairness’ Vision

Given the proliferation of agencies at this point, some degree of rationalization by Labor was expected. But when it was announced that the AIRC was also to be replaced, there was consternation in some quarters. Over the years, the Commission had been a flexible and adaptive institution that had withstood many challenges (Isaac, 1990; Stewart, 2004). In acting as an ‘independent umpire’ within an arbitration system that strove to provide a ‘fair go’ at work, it had made a major contribution to the social and economic fabric of Australian society (Isaac and Macintyre, 2004). Even with its responsibilities reduced by the Howard government, it had continued to enjoy strong support from most parties (Forbes-Mewett et al., 2003). It had been particularly effective in fighting off competition from other providers of dispute resolution services (Forsyth, 2007). What, then, was the point, many wondered (see e.g. Smith, 2008), of losing the tradition, expertise and credibility accumulated in the Commission?

Others, by contrast, welcomed the prospect of a new beginning. They lamented the way in which the Commission, like the award system, had been left to ‘wither on the vine’. While it may have been possible to restore the Commission's lost functions, there was a view that it was too far gone to be worth saving, not least because the Howard government had ‘stacked’ the Commission during its time in office. Many appointees – the President very much included – were (and are) highly respected. But this was not universally true, and the figures themselves told the tale. As Julia Gillard (2007) noted, of 20 appointments made over the preceding 11 years, 14 had come from a background in employer organizations, but only two from unions – and the gender balance was 19:1. Furthermore, most of the appointees had gone straight into senior roles, with long-serving Commissioners consistently overlooked for promotion. Evidence of obvious bias was perhaps hard to find, and indeed for many practitioners it was the personalities and styles of individual members that made a difference, not so much their background. ³ But the perception of an imbalance was important.

The first mention of the Commission being replaced came in a speech by Kevin Rudd in April 2007 (Rudd, 2007). The ‘new industrial umpire’ mentioned in that address was revealed just a few days later, with the release of Labor's ‘Forward with Fairness’ policy (Rudd and Gillard, 2007a):

Fair Work Australia will be a one stop shop, making it easier for employers and employees to understand and enforce their rights and obligations at work. Fair Work Australia will provide information and advice, undertake formal and informal dispute resolution and contain an inspectorate to monitor compliance with Labor’s new industrial relations system.

Within Fair Work Australia there will be an independent judicial division created and operating in accordance with the Australian Constitution.

Fair Work Australia will determine the minimum wage in an open and transparent process conducted once each year, review awards and provide recommendations to Government about Labor’s national employment standards.

… Fair Work Australia will be accessible to all Australian employers and employees. There will be offices in suburbs and regional centres and workplace visits will be available to provide further convenience. There will no longer be a need to contact different helplines and deal with separate agencies about workplace matters.

The Vision Blurred: Abandoning the ‘One-stop Shop’

Whatever the virtues of this original ‘one-stop shop’ idea, by the time the new Labor government came to implement ‘Forward with Fairness' it had been well and truly compromised, if not entirely abandoned.

For instance, the compliance and advisory functions envisaged for FWA were allocated under the Fair Work Act to a separate body, the Office of the Fair Work Ombudsman (FWO) – itself a clear successor to the Office of the Workplace Ombudsman. In 2008, the government was still insisting that the FWO's ‘day-to-day operations’ would be ‘practically integrated with FWA’ (Explanatory Memorandum, [r.332]). As late as May 2009, there were references to FWA and the FWO developing a ‘co-operative and seamless approach to the delivery of services’ (Workforce, 2009). But, in practice, the two bodies have operated quite independently – and indeed the differences have become more pronounced over time. For example, when FWA and the FWO ‘opened their doors’ in July 2009 they had linked websites that could be accessed from a common portal. But in September 2010 this idea was abandoned, with the FWO taking over and redeveloping that portal as its own website. It now has a distinctly different look and feel to FWA's site. For public purposes, then, the two now present as entirely separate entities.

Another part of the vision that has not been realized relates to the building industry. During its first term in office, the Labor government failed to win support for its Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009. But even if that measure had been passed (and at the time of writing it was soon to be reintroduced), it was proposing to replace the ABCC with a Fair Work Building Industry Inspectorate that would have been separate from the FWO, let alone FWA.

Also abandoned was the notion of FWA having an ‘independent judicial division’. Instead, ‘specialist’ Fair Work Divisions were created within the Federal Court and Federal Magistrates Court to deal with workplace relations matters. Even then, there has been no sign of judges or magistrates being exclusively appointed to these divisions to recognize their expertise in the field.

So all that remains of the original vision is that FWA has replaced four bodies: the AIRC, two other institutions created to perform functions previously allocated to the Commission (the OEA/Workplace Authority and the Fair Pay Commission) and the Registry. The latter is still visible within FWA's organizational framework in the shape of the General Manager (GM) and the staff for whom that person is responsible. Although the GM's principal role is to ‘assist the President in ensuring that FWA performs its functions and exercises its powers’ (Fair Work Act s. 657[1]), like the former Registrar, the GM has a range of specific responsibilities that include overseeing the registration, rules, democratic control and finances of trade unions and employer associations. The GM is given independence from the President in specified respects, and is even designated by section 670(2) as the ‘head’ of FWA for the purposes of the Public Service Act 1999. ⁴

The Commission in Another Guise?

Allowing, then, for the effective survival of the Registry within FWA as a semi-autonomous part, is the rest of FWA simply the pre-Work Choices AIRC in another guise? There are certainly many similarities between FWA and the old Commission. Like its predecessor, FWA has a President, Deputy Presidents and Commissioners, ⁵ specialist panels, and Full Benches to hear appeals. Crucially too – and to the dismay of those hoping for a ‘purge’ of the Howard appointees – Schedule 1 to the Fair Work Act ensured that all existing members of the Commission as at June 2009, other than dual appointees from State tribunals, were automatically ‘rolled over’ to FWA. The new body was also headed by the AIRC President, Justice Geoff Giudice, who had been identified as far back as May 2007 as Labor's preferred choice in this role (see Gillard, 2007). There have been new faces since then, notably in December 2009 when the government agreed to appoint (or in some cases give dual appointments to) State tribunal members from New South Wales, Queensland, South Australia and Tasmania. ⁶ But for experienced ‘users’ of the federal system, it is not unusual in 2011 to be dealing with the same member as for an equivalent pre-Work Choices matter.

Yet there are also key differences between FWA and the Commission. It is emphasized in section 593 of the Fair Work Act that FWA is not always required to hold a hearing to discharge its functions. Indeed, the government envisaged FWA moving away from ‘formal, adversarial processes, with legal representation and intervening parties’ (Explanatory Memorandum, [r.335]). Not only can FWA staff members be empowered to perform ‘ancillary non-determinative functions’ (Explanatory Memorandum, [r.337]), such as conducting initial inquiries and gathering information about a matter, but they can be delegated authority under section 625 to conduct a conciliation conference. There is more than a hint of the Workplace Authority in the ability to make decisions ‘on the papers' or operate through unidentified staff members.

The discretion that is conferred on FWA as to how it exercises its powers stands in clear contrast to the position prior to the Fair Work Act. Over the previous 20 years, it had become plain that successive governments – both Labor and conservative – had lost trust in the AIRC. They endeavoured to specify in ever-greater detail what it must and must not do, what factors it should treat as relevant or irrelevant, whose views it should seek, who had standing to bring applications, when things must be done, how decisions should be expressed, who should be notified about them, and so on (Stewart, 2005). Although that approach can still be discerned in some parts of the new legislation, especially the bargaining provisions, they have become the exception rather than the rule. The new Act largely bears out the government's claim that it is not merely ‘simple and straightforward to understand in terms of structure, organisation and expression’, but that it ‘reduces the compliance burden on business … by avoiding “micro-regulation” and overly prescriptive provisions and by conferring broad functions and appropriate discretion on Fair Work Australia’ (Explanatory Memorandum, [r.4]).

Crucially, then, it is up to FWA itself, its members, its General Manager and above all its President, to decide what kind of agency it wants to be. I use the term ‘agency’ advisedly, even if its members may still be inclined to think of it as a tribunal. A ‘tribunal’ is generally understood to be ‘an adjudicative body other than a court’, as opposed to a rule-making ‘regulatory agency’ (Cane and McDonald, 2008: 13). FWA does still resolve certain disputes, and indeed conducts hearings on some matters. But a body with so many functions that can be (and in many cases are) discharged by administrative response to a written application, with no hint of any dispute, is not adequately described as a tribunal. Nobody would ever have attached that epithet to the Workplace Authority.

The question, though, is when FWA will or should operate as a tribunal, with public hearings preceded and/or punctuated by private conciliation conferences, and when it will strive to use purely administrative processes to make decisions. This can helpfully be discussed by reference to four key functions: the approval of enterprise agreements; the resolution of unfair dismissal claims; wage fixation; and the setting and variation of minimum standards.

Approval of Enterprise Agreements

The new system for dealing with enterprise agreements that has emerged since July 2009 can be seen as a hybrid of the processes previously used by the Workplace Authority and the pre-Work Choices AIRC. When an application is lodged, FWA staff members – many of whom were transferred over from the Authority – provide the initial point of contact, following up any areas where there appear to be obvious problems in complying with the Act's requirements. Once any initial queries have been resolved, the matter is handed on to a Commissioner or presidential member to make a decision. Sometimes that is done without a hearing of any sort, but on other occasions the employer and any other relevant bargaining representatives may be summoned to address particular concerns. FWA has also in some instances – even though nothing is said about this in the Fair Work Act itself – allowed interested parties, including individual employees, to put submissions opposing approval (see e.g. Workplace Express, 2010b). Importantly, too, and unlike the position under Work Choices, any person ‘aggrieved’ by a decision to approve or not approve an agreement may appeal to a Full Bench under section 604 (see Stewart, 2011: para. [8.8]).

The government's original expectation was that most agreements would be ‘approved on the papers within 7 days’ (Explanatory Memorandum, [768]). In fact, in the first 12 months of the new system, the median time from lodgement of a single-enterprise agreement to a final decision on its approval was 35 days (FWA, 2010). That is perhaps not surprising. It is true that FWA has to deal only with collective agreements, applications for which are presently running at around 400 a month (FWA, 2011c). That is far less than the 20,000 collective and individual agreements per month with which the Workplace Authority had to deal at one stage. On the other hand, there are a substantial number of criteria that must be satisfied under sections 186 and 187 of the Fair Work Act (Creighton and Stewart, 2010: ch. 12). These include compliance by employers with a significant number of mandatory pre-approval steps, including the provision to employees of a representation notice and a reasonable explanation of what the agreement involves.

Some members of FWA – especially some of the newer appointments – have perhaps been more inclined than others to pore over the detail of each agreement and its supporting documentation, and identify problems. But some of the initial differences in approach seem to have diminished, especially since the Full Bench decision in the McDonald's case. ⁷ In quashing a lengthy decision to refuse approval for an agreement negotiated by McDonald's and the Shop, Distributive and Allied Employees' Association (SDA), the Full Bench stressed that the requirements of the Act should be applied in a ‘practical, non-technical manner’.

At the same time, it is worth recalling that even under the old certification procedure, before Work Choices, research showed that the AIRC could and did make mistakes, especially when vetting non-union agreements (Mitchell et al., 2005). This often occurred because such agreements had been prepared by the employer with minimal negotiation, and with nobody fronting the Commission to provide an independent viewpoint. So it is important that appropriate scrutiny be brought to bear – even if this adds a few days to the turnaround time.

Unfair Dismissal Claims

Another area where there is potential for efficiency concerns to overshadow the quality of outcomes relates to the handling of unfair dismissal complaints. Here, too, there is something new. Under the Workplace Relations Act, all claims not challenged for lack of jurisdiction went automatically to conciliation by a member of the AIRC, and then on to arbitration only after (a) that member provided a certificate that there were no prospects of an agreed resolution and (b) the applicant made a formal election to take the case further. By contrast, the Fair Work Act leaves it up to FWA to determine whether to resolve a claim by private conference or by way of a formal hearing – or indeed if no facts are in dispute, without either (ss. 397–399). It should also be noted that there is no special rule for legal representation in unfair dismissal cases. FWA must determine, as in any other type of matter, whether representation by an external lawyer or paid agent would enable the matter to be dealt with more efficiently, or whether it would be unfair to deny representation (s. 596).

When the Fair Work Act commenced, FWA was under obvious (if not publicly stated) pressure to deliver on the government's commitment that unfair dismissal claims would be handled more quickly, more cheaply and more informally than under the previous regime. The procedure it has in fact chosen to adopt is considerably different from Labor's original vision of resolving claims at a single conference, with no written submissions, no cross-examination and no lawyers (Rudd and Gillard, 2007a, 2007b). The failure to implement that idea is scarcely a surprise. It is hard to imagine how such a system could have survived the inevitable challenges for denial of procedural fairness.

At the same time, the new procedure is far from the flexible model that the legislation itself might suggest. Rather than mould the process to the circumstances of each case, or leave it to individual members to determine how to proceed, a set approach is now strictly applied. The employer is first asked to complete a form outlining the reasons for the dismissal and its response to the applicant's contentions. The matter is then swiftly listed for conciliation. This is usually conducted on the telephone, rather than face-to-face, by a specialist conciliator who is not a ‘member’ of FWA as such, but a public servant appointed to its staff. These conciliators have not been formally delegated with the power to convene conferences, as section 625(1)(c) of the Act would allow. The processes they conduct therefore have no status under the Act, making the conciliation completely voluntary – something FWA does not always make clear. In any event, most parties choose to participate. About an hour and a half is allocated to each conciliation, with conciliators typically conducting three a day (Acton, 2010).

If the matter is not settled right away, the application is immediately listed for determination by a Commissioner or presidential member, with directions to the parties to file witness statements and outlines of arguments. No further opportunity is offered for conciliation, although the parties may be given the option of having the claim resolved at a conference, rather than a more formal hearing. External lawyers or advocates are typically allowed to be present, although it is not unknown for leave to be refused where the other party is unrepresented.

On the face of it, the new system has been a great success. Statistics on the first year and a half of the system show that over 80 percent of claims were resolved at conciliation, with less than 3 percent ultimately going on to arbitration (FWA, 2010, 2011b, 2011c). Claims are also being resolved more quickly. Most applications go to conciliation within four weeks, and to any merits determination within a further four to eight weeks (Acton, 2010). By contrast, under the Workplace Relations Act around 75 percent of claims generally settled at conciliation, with the first conference typically being held between eight and nine weeks after lodgement (AIRC, 2009). A survey of applicants, respondents and their representatives commissioned by FWA has also found strong levels of satisfaction with FWA's administration of the new system, the approach taken by the conciliators and indeed the conciliation process itself. Representatives were noticeably less enthusiastic than their clients about the merits of conducting conciliations over the phone, but a majority still supported the idea. Nearly 80 percent of representatives were satisfied with the overall outcome of the claims in which they were involved, although both respondents (64 percent) and more particularly applicants (58 percent) recorded lower (but still positive) levels of satisfaction (TNS Social Research, 2010).

All this seems well and good – and so it is, if the object is to process claims as fast as possible and keep most of the ‘customers’ happy. Yet it is worth recalling a point made by Mourell and Cameron (2009), that there is a balance to be struck between the competing interests of what they call ‘legal truth’, cost and efficiency. The current system is entirely geared up to inducing fast settlements. By FWA's own account (Workplace Express, 2010c), those settlements predominantly involve the payment of fairly small sums of money to the applicant (in 58 percent of cases, less than $4000) – just as was the case under the previous Act (see Southey, 2008). There is no evidence to show that deserving claimants are now more likely to get their jobs back, or that unmeritorious claims are more likely to be rejected entirely.

Even if monetary settlements are to be the outcome of a majority of cases, it is worth posing the question: should so few claims go to arbitration? How can a system of this kind send the right signals to management and workers about what constitutes fair or unfair dismissal if the vast majority of claims are neither ruled to be untenable at some initial stage nor dealt with by way formal adjudication?

Wage Fixation

There is little that needs to be said about the annual wage reviews required under Part 2-6 of the Fair Work Act. It was always clear that FWA's Minimum Wage Panel was intended to operate in a similar way to the Australian Fair Pay Commission – and so it has done. Like the AFPC, the Panel has part-time panel members, appointed for their expertise in fields such as economics or social policy – although, as constituted by the President under section 620, the current Panel retains a majority of ‘regular’ members. FWA can ‘inform itself’ by commissioning research, something it has been as active in doing as its predecessor. In its first two reviews, it has also continued the AFPC's practice of calling for public submissions and publishing both them and other relevant material on its website. Perhaps the only departure has been the holding of ‘consultations’, where major stakeholders have been able to speak to their submissions and be publicly questioned by the Panel. This is essentially the model the AIRC had also used during 2008 and 2009 for the process of modernizing awards. It is one that allows greater input from the community and is much more transparent to the public (or at least those that can be bothered to browse the relevant website) than the old wage cases ever were. The arguments and perhaps the outcomes may remain the same, but the process seems more in tune with modern sensibilities.

What it also emphasizes, however, is that FWA is operating in every sense – at least in this aspect of its work – as a rule-maker, not an adjudicator. Unlike the old wage cases, there is no application before the Minimum Wage Panel, there are no ‘parties’ and nor is there any ‘dispute’ to resolve. Instead, this is a process of public inquiry. As section 604 of the Act confirms, the outcome cannot be appealed. Indeed, if Orr (2009b) is correct, as a ‘quasi-legislative’ process it is not amenable to judicial review either, in the absence of some obvious error as to the scope of the Panel's powers.

Setting and Varying Minimum Standards

That brings us in turn to FWA's role in adjusting other minimum standards under the Fair Work Act, most notably those set by modern awards. There is an interesting dichotomy here in the processes for varying those instruments.

On the one hand, section 156 requires FWA to conduct systematic reviews of all modern awards every four years, during which it may vary or revoke any instrument. ⁸ Such reviews must be conducted by reference to the ‘modern awards objective’ in section 134 of the Fair Work Act. FWA must ensure that modern awards, together with the National Employment Standards, provide what the section describes as a ‘fair and relevant minimum safety net of terms and conditions’, taking account of various economic and social factors.

The scheduled reviews do not, however, represent the only opportunity for varying awards. Under Division 5 of Part 2-3 of the Act, it is open to FWA to vary an award at other times either on its own initiative or on application by an affected employee, employer, union or employer association. The grounds for such ‘between-reviews’ variations are, admittedly, limited. They include the correction of errors, the resolution of ambiguity or uncertainty, and the review of minimum wages on work-value grounds. But section 157(1) also permits the variation of any provision, other than one setting a minimum wage, that is ‘necessary to achieve the modern awards objective’.

This is not an entirely novel provision. Section 553 of the post-Work Choices Workplace Relations Act contained a similar power to vary an award on the basis that the variation was ‘essential to the maintenance of minimum safety net entitlements’. Radical improvements to the award safety net would clearly have been outside the scope of this provision. But who is to say a union could not have used the provision to seek a discrete improvement in award standards, especially for a low-paid, award-reliant sector? As it was, the general assumption was that ‘test cases’ of any sort were a thing of the past (see e.g. Murray, 2005, 2008), and unions agitated for political change rather than exploring the boundaries of the Commission's powers.

So is there still scope now for the test case under the Fair Work Act? Or indeed for any general improvement to award conditions, achieved through application rather than through periodic review? There is almost a question of ‘ownership’ here. Under the old award system it was unions, and to a lesser but still important extent the employer associations that periodically opposed or worked with them, that were the ‘custodians’ of the award system. While the Commission may have had the final say, it was up to unions to seek variations and extensions of coverage, and indeed (for the most part) to enforce award standards. But that latter role has now passed largely to the FWO (Hardy and Howe, 2009), and there is no longer any generalized power of arbitration that can be invoked to resolve disputes about the content as well as the effect of award standards. It is now for FWA to decide whether, and to what extent, those standards are reconsidered in between the mandated reviews. But FWA can still choose to cede a role to unions – or indeed any other sufficiently interested party – in the process of change, by accepting and considering applications.

There is surely a reason why the Fair Work Act safety net is in two parts, and that one of those parts is capable of variation not just between industries or occupations, but over time. The award system, and FWA's capacity to vary it, supplies the flexibility and capacity for dynamic change that the National Employment Standards necessarily lack as rules fixed by Parliament. It is also worth emphasizing that section 55 specifically envisages that modern awards may ‘supplement’ the National Employment Standards by providing entitlements that are more beneficial to employees.

During the award modernization process in 2008/9, the AIRC showed little appetite for reconsidering award standards. But then the enormity of the task – standardizing conditions across every industry and occupation in only 20 months – scarcely left much time for innovation. Since then, FWA has been busy tying up loose ends, and resisting the inevitable attempts to reopen arguments lost before the AIRC. Once these are dealt with, it will be open to FWA – if applications are made to it, and if it takes a broad view of the concept of ‘necessary’ changes to the safety net – to reconsider some of the standards it has previously accepted.

Conclusion: A Question of Choice

As this article has emphasized, FWA can decide to operate as much like the old Commission as the legislation will allow. But equally it can embrace the best aspects of the other agencies it replaced – as indeed it has already done, especially in the area of wage fixation. The challenge is to find a sensible balance between continuity and change, and also between efficiency and quality of outcome. Hopefully though, the ‘makeover’ that the government has imposed will produce a better and more effective regulator – even if does not, and perhaps cannot, meet some of the performance benchmarks the government would like to set.

In the end, it is not what an institution is called that matters, but how it performs. The old Commission served Australia well over the years. It had a lot to do with our economic prosperity, and our (relatively) egalitarian society. There is no reason why its successor cannot, within the limits set by the Fair Work Act, continue to do good work. After all, having a one-stop shop is far less important in the end than having something worthwhile to sell.