||Issue No. 123||21 December 2001|
The Unmaking of History
International: Global Year in Review
Unions: A Year at the Barricades
Technology: Unions Online 2001
Republic: Terror Australis
Economics: 2001: Annus Horribilis
Campaign Diary: Melanie and Me
Politics: Tony Moore's Final Word
Review: You Are the Weakest Program
Legal: The New McCarthyism
The Locker Room
The First Bastion
Tom Collins' Christmas Wish
Neale Towart's Labour (Year in) Review
Sporting a Costa crew-cut, a new look Neale looks back on some issues of 2001 that look likely to the centres of debate for unions in 2002.
The right to Collective Bargaining remains the key for unions and the cornerstone for the rights of workers. Otherwise we finish up back at the laws of Ancient Rome, as Tony Abbott seems to want. The Universal Declaration of Human Rights is clear on this, and David Peetz discussed these issues well in
"Individual Contracts, Collective Bargaining, Wages and Power"
Over the past decade or more, employer use of individual contracts to determine pay and conditions for employees increased in Australia and elsewhere, in no small part due to encouragement by governments, including through legislation promoting Australian workplace Agreements (AWAs). This paper considers the evidence on the impact of individual contracts and collective bargaining on outcomes such as pay and conditions for employees and the implications for the distribution of power. Employees on AWAs receive higher pay on average than other employees, due to the overrepresentation of managerial and senior specialised skilled staff amongst AWA employees. For other employees, however, individual contracts appear to be more likely to be associated with lower wage increases and/or reductions in other conditions of employment. This in turn reflects the impact that individual contracting, compared to collective bargaining, has on the power of employees. Collective bargaining increases the bargaining power of employees, is the mechanism by which unions achieve most gains for their members, and is strengthened when union density is high. However, not all employees receive lower wages if they shift from collective bargaining to AWAs: some receive a non-union premium, by which employers in effect purchase a transfer of power from employees. While the impact of individual contracting, by comparison with collective bargaining, on pay and conditions may vary, it is unambiguously associated with a transfer of power from employees to employers.
Works Councils became a bit of a hot topic for a little while (mainly when it looked though the ALP was a lay down misere for a federal election win). Various commentators had a go at the idea, including Ron McCallum. The Industrial Democracy conference at the University of Sydney in June (see http://www.labor.net.au/worksite/index.html for discussion). A way of re-establishing collective rights or a way of getting around unions? This paper from the Uni. of Newcastle was the most detailed discussion.
"Works Councils needed because HR has failed" by Professor Mark Bray, Dr Stéphane Le Queux, Dr Peter Waring and Dr Duncan Macdonald
Mandatory worker participation mechanisms such as European-style works councils need to be adopted because HR management has failed to deliver on its promise to empower and give autonomy to workers, according to a discussion paper released at the ACTU's executive meeting today.
The Representation Gap in Australia, from the Uni. Of Newcastle Employment Studies Centre, says that seismic changes in union membership and IR regulation in the mid-1990s opened up a "representation gap" that left workers with no systematic mechanism to participate in workplace decision-making. Management, according to
the paper, has been left with virtually unfettered prerogative in many cases
Bargaining fees got up Tony Abbott's nose and the initial decision was a favourable one for unions. Later cases weren't so helpful. These two papers provide good discussion on the issue.
"Bargaining Agents Fees -a fee for service or an invitation to join?" by Susan Zeitz
The decision by Vice President McIntyre on fee for service moves by the ETU has sparked outrage from Tony Abbott and concern amongst lawyers. Zeitz discusses the reasoning behind the decision. The government is to attempt to change the Workplace relations Act to outlaw such actions by unions, but Andrew Murray, Democrat spokesperson on IR seems favourably disposed to the idea of fee for service. A test case in the NSW jurisdiction isn't far off.
(CCH Australian Employment Law Update; newsletter 2/2001, February 2001)
"Agency Shops in Australia? Compulsory Bargaining Fees, Union (In)Security and the Rights of Free-Riders" by Graeme Orr
Assesses the merits of 'agency shop' or 'fair share fee' common in the North American collective agreements and their potential application in Australia.. It describes and draws lessons from US legal practice. Enforceability and legality under Australian certification and freedom of association law is discussed. Concludes that agency shop fees would be a welcome and justifiable addition to the Australian enterprise bargaining scene, but they would be no panacea. They would probably benefit unions who least need security, and could lead to increased regulation of internal union affairs.
(Australian Journal of Labour Law; vol. 14, no. 1, May 2001)
Casualisation and new forms of the employment relationship are perhaps the biggest concern for workers as the employers continue to have legislation that tips the scales even more in their favour. Meg Smith's paper was a terrific summing up of the issues involved, particularly for women workers, who comprise the great majority of casual employees. The access of casuals to unfair dismissal laws was confirmed federally and in NSW this year too.
"Casualisation: What is the Debate We Should Be Having?" by Meg Smith
The federal Minister and the Productivity Commission have been quick to dispute statistics about the level of casualisation and the level of insecurity in the workforce.
These arguments avoid the issues of the gendered nature of casualisation and the ability of the Industrial Tribunals to deal with it.
While casualisation is prevalent for both men and women it is women who are disproportionately represented in casual employment, particularly part-time casual employment:
· 32% of employed women are employed on a casual basis--the comparable figure for men is 22%;
· 70% of casuals are employed on a part-time basis. Men comprise 74% of all full-time casuals while women comprise 66% of all part-time casuals; and
· 85% of women and 52% of men employed casually are engaged on a part-time basis.
Conservatives use these figures to argue that women choose part-time casual work for lifestyle reasons. Smith would beg to differ.
Background Briefing on ABC radio also had a excellent program on these issues, and some comments on the rather strange view of the employment relationship held by the Mad Monk.
"Employment 2001: Permatemps and Other New Lifeforms"; Stan Correy , producer
The AMWU casuals decision, "flexible workplaces", workplace partnerships, psychological contracts, spirited workplaces. All issues coming up in industrial relations and ones the Minister, Tony Abbott, will be talking about in his weird way.
Breen Creighton, author of many labour law texts, and a lawyer with Corrs Chambers Westgarth, is curious about Abbotts' return to the language of pre-industrial times, more or less equating industrial law with oldfashioned family law. Industrial law did develop from family law and the master-servant relationship. Roman law was the basis of it, "when the pater familias had control over the members of the family and the extended family in the form of servants." The ideal for Abbott?
This program discussed the work and family situation and flexibility, contingent workers in the US (the big example is Microsoft), the Fairmont Hotel attempt to outsource its cleaning staff and labour hire firms in general. The flexible, family-friendly workforce doesn't exactly match Abbott's family workplace.
Workers entitlements also were a rallying point. A sign of the times when the big issue is the payout for the loss of jobs and the security of employee funds when corporates go belly-up. The IT industry led the redundancy rush but the Manusafe fund developed by the AMWU and others was the big innovation from employees, independent of any ALP government.
"New Fund to Secure Workers' Entitlements" by Tania Clarke
A number of manufacturing unions have established an industry trust fund to secure employee entitlements.
Manusafe aims to protect entitlements and to ensure their portability in the industry. The scheme operates in a different way to the federal-State government "employee entitlements scheme". That scheme caps payouts at $20,000.00. Each separate entitlement is also capped. For example, an employee may only be entitled to 4 weeks annual leave even though they may be owed 8 or 12 weeks.
In contrast, employers participating in Manusafe agree to pay monthly contributions into the fund on behalf of each employee. The amount is negotiated and included in a certified enterprise agreement.
The Manusafe Board comprises union representatives and there are vacant seats for employers. All funds deposited are secure and returns earned on money in the fund will go towards the establishment of an industry-wide long service leave and/or severance fund.
On a week to week basis, casuals and contractors who are mobile and regularly change jobs will be able to secure their entitlements into Manusafe and take them with them from job to job.
The AMWU is currently campaigning to persuade employers in the manufacturing industry to both participate in the scheme and join the Board.
(ACOSS Impact; February 2001)
The Working Hours campaign and test case continue. The French experience is taken by many as a good or bad example.
"Productivity and the 35 Hour Week"
Despite forecasts of doom, the legislation of a maximum of 35 hours work per week in France has not been disastrous, and has boosted productivity for the who have embraced the laws. The French Labour Ministry claims 150,000 new jobs have been created so far because of the laws. The laws have had a one year trial and are being fully enforced. Employers who are using the laws find it allows them to extend operating times when they employ extra staff. Disneyland, for example, has increased its workforce by 10% and stays open for an extra 2 hours per day.
Another outcome has been that at Wanadoo, France's largest Internet portal. Wanadoo has seen a dramatic increase in productivity from individual workers since it started to comply with the law last year. Wanadoo's salaried employees are now getting an extra 10 to 18 days off a year. But they're still getting their work done. And despite the intent of the law, Wanadoo has not hired any new employees.
Meanwhile in Australia, the number of employees working longer hours continues to rise. The ABS survey of employment arrangements and superannuation shows that over 14% of employees with leave entitlements worked more than 50 hours per week.
41.1% worked more than 40 hours per week. 21% did unpaid overtime. 75% of casual employees expected to be working at the same employers in 12 months time.
ABS. Employment Arrangements and Superannuation, Australia, 6361.0
The Work and Family balance is at the heart of many of the hours issue. In the UK some the government has been considering the issue.
"Work & Parents: Competitiveness and Choice- a summary: Parental Leave in the UK"
Some of the problems it addresses include:
· Should the period of unpaid maternity leave be extended so that a woman can stay at home for a year in total?
· Should any extension to unpaid maternity leave be shared equally between the mother and the father?
· Should the flat rate of maternity pay be increased? Or the period over which a woman receives maternity pay lengthened to 26 weeks?
· Should one parent have a right to leave paid at the equivalent flat rate and for the same length of time as maternity pay when adopting a child?
An increasing number of men want to play a more active role in supporting their partner following the arrival of a new child.
· Should working fathers be given paternity leave, for example for two weeks, paid at the same flat rate as maternity pay?
· What mechanism should be used if paid paternity leave is introduced and why?
Paying for parental leave would be very costly for employers and the State. However, the Government is seeking views on whether, despite this, it is a priority. Other options on parental leave are:
· Should the amount of parental leave available to parents of disabled children be increased?
· Should there be funding to help employers develop flexible parental leave schemes?
People are now able to take unpaid time off to deal with a family emergency, for example, when children are sick.
· Should this entitlement to time off work include routine hospital appointments for children and other dependants?
The main problem faced by employers, especially small ones, is finding cover when someone is absent.
· How could the Employment Service and private recruitment agencies work with employers from an earlier stage with managing absences?
Statutory Maternity Pay (SMP) is paid by employers and then refunded by Government. This creates an administrative cost for employers. What can we do to reduce the costs for employers?
· Should more small and medium-sized employers qualify for complete repayment of the money they pay out on SMP and the additional compensation?
· Should small employers be encouraged to make use of the existing provision to seek SMP payments in advance from the Inland Revenue?
John Buchanan and Louise Thornthwaite reported on new approaches in Australia
"Paid work and parenting: charting a new course for Australian families"
To date, work and family policies and praise have focused on a few adhoc initiatives based on a 'best practice' model of workplace reform. These have been larger workplaces and others are urged to follow suit. The authors argue that a more systematic approach is needed as more and more people are expressing their dissatisfaction with the work family cycle, and for many the situation is deteriorating (note the increase in working hours in Australia). Key findings of the report include:
· a comprehensive system of maternity and paternity leave paid for by government, but funded, at least in part, by employers
· a comprehensive, quality child care system with quality and access the keys, not the profit motive
· employee choice rostering arrangements, buttressed by awards, and,
· if necessary, legislative specifications and obligations enabling individuals greater capacity to fit work around family lives
· a new deal for part time workers to improve quality of jobs and to ensure access to part time work for parents who need it
· experimenting with new support structures at neighbourhood level
· developing new support arrangements for employers
(Report for the Chifley Research Foundation; published by ACIRRT as Working Paper no 70, August 2001)
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