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Workplace Gladiators

Paper presented by Arch Bevis - to the NSW Industrial Relations Society, 19 May 2000

Peter Reith as Russell Crowe? That's the image Labor IR spokesman Arch Bevis conjured up in a frecent address to the Industrial Relations Society.

Last year, in my address to your 1999 conference, I referred to the Clayton's intervention of the current federal government in industrial relations - the intervention you have when you're not having intervention.

That of course referred to Minister Reith's claims that his 1996 laws provide employers and employees with greater choice free from outside intervention - a spurious assertion dismissed by even the Business Review Weekly which described Peter Reith as, "... possibly the most interventionist industrial relations minister in Australia's history ..."

One year on the evidence in support of my position has grown.

The Howard government's approach to industrial relations has seen more intervention, not less. It's just that the intervention is now applied directly by the government or its agents like the Office of the Employment Advocate in a calculated and biased manner.

Claims of removing or reducing intervention should more accurately be seen as reducing the role of the umpire, (the AIRC), and trade unions.

Indeed, Minister Reith is proud that his legislation and actions have resulted in a weakening of the Commission. For example in 1998, he proudly boasted to the extreme right wing H R Nicholls Society that the inability of our courts and the commission to act in the Hunter Valley No1 dispute was only possible because of his laws. He said that;

"... didn't happen by accident, that happened because of the nature and the tenets of the Workplace Relations Act."

That dispute highlights the double standards applied by this government to the role of the commission and the courts.

In a dispute that has dragged on for years, the federal commission has determined that it has no effective role to play in finding a settlement. What is more, Peter Reith has crowed that his laws have produced that result.

I am sure most Australians look at protracted disputes of this kind and wonder why the umpire can't step in and sort it out.

This confrontationist approach is better suited to a scene in the film 'Gladiator' than a place in our national industrial relations system. Although I must confess, Peter Reith makes a most unlikely Russell Crowe.

A more recent example of the same gladiatorial approach to industrial relations was exhibited in the ACI dispute at Box Hill in Victoria. In that case the company locked its workers out for five months - without as much as one word, one press release or one Dorothy Dix question in Parliament from Peter Reith criticising it. Is there anyone in this room who honestly believes the Minister could have contained himself if there had been a strike in this industry for five days, let alone five months!

Especially in the manufacturing industry and especially in Victoria!

In fact the government opposes intervention only where it judges intervention might impede its ideological campaigns. That may be an understandable attitude for protagonists in a dispute to adopt, but it is totally unacceptable for a government that has responsibility for protecting the public interest and ensuring proper process is followed.

The Victorian construction industry dispute is a clear contrast. Unlike, the Hunter Valley dispute, where there is a large multinational firm with deep pockets and some sympathy for this minister's ideology, the Victorian construction industry is made up of many firms of varying sizes and attitudes - none with pockets as deep as Rio Tinto.

In this scenario, the government and its closest supporters were calling out for court intervention to stop the union campaign. As contractor after contractor signed agreements with the unions, the outcome became inevitable.

By early April those close to the Minister were lamenting the result and - contrary to their usual mantra - blaming the courts for not intervening. What ever happened to their rhetoric of no intervention?

The contribution that tickled my fancy was from Peter Reith's confidante, sometime adviser and right wing exponent, Des Moore. Writing a column in the Herald-Sun, he lamented;

'The eight weeks of resistance by builders now looks like crumbling, mainly because Federal Court intervention failed to protect employers from union intimidation'.

Having then complained that third party intervention had failed to protect these employers, he then paradoxically went on;

'The scope for third party intervention in employer-employee relations must be reduced immediately'.

Setting aside the self-contradiction, what does all that mean? A five month lock out or a three year mine dispute are OK - no need for any courts there, but a two month union campaign is outrageous and should have been stopped.

Where's the Balance?

Workplace Relations Amendment Bill 2000 (Pattern Bargaining)

The government has adopted the same approach with the bill on pattern bargaining they introduced into Parliament last Thursday, the Workplace Relations Amendment Bill 2000 (at least it's not called 'more bargains more pay', or something similar to the 'More Jobs Better Pay' title of last year's bill).

This bill would effectively outlaw pattern bargaining by unions - only unions. Companies and their representative bodies would remain free to pattern bargain as they do now. In fact pattern bargaining is fostered by industry bodies, the Office of the Employment Advocate and the Minister's own department through template agreements recommended to individual firms - often as part of a campaign.

My Macquarie Dictionary gives as its first definition of template 'A pattern'. What's the difference? The only difference is whether a union or an employer undertakes it.

The same bill includes a provision requiring the industrial commission to give special consideration to employers. In what would be an unbelievable provision in any other government, or with any other Minister, the bill directs the Commission to have particular regard to the views of the employer in its decision.

Subsection 4 of the proposed definition of pattern bargaining states

(4) In determining, for the purposes of subsection (2), whether entitlements sought by an organisation that is a negotiating party to a proposed agreement in relation to a single business, or part of a single business, are of such a nature that they are not capable of being pursued at the single business level, the Commission must have particular regard to the views of the employer who is a negotiating party to the proposed agreement.

We have gone from implied bias to express bias. Whatever happened to the notion that we are all equal before the law? Here we have an umpire being told when and how to blow the whistle.

Imagine what would happen if I were to announce that Labor would require the commission to pay particular regard to union submissions, over the wishes of employers, on any matter.

There is one further provision of this Bill that warrants mention. Tucked away in it is yet another attempt to restrict the role of the Federal Court in dealing with IR matters.

Whatever else may be said of Peter Reith - and I particularly liked the Treasurer's comment in Parliament last week that he is 'a very convincible fellow' - it has to be conceded he is persistent.

His failed second wave laws sought to widen judicial forum shopping by increasing the role of state courts at the expense of the Federal Court.

He then sought to piggy back onto the bill establishing the new Federal magistrates courts by giving them authority over a number of sensitive industrial relations matters, even though the new court was being established principally to deal with the backlog of work in family court matters. That failed too.

The Minister's latest effort is to tag on to his pattern bargaining bill restrictions on the Federal Court. This latest manoeuvre deserves the same fate as his earlier attempts.

As a Queenslander I have fond memories of watching Joh Bjelke-Petersen stumble his way around the question of the separation of powers. I didn't think we would have the same problem in Canberra. The government might not like some of the decisions from the Federal Courts, but it is about time the government stopped undermining and trying to circumvent the court.

As if to highlight the one sided nature of this bill, the Australian Chamber of Commerce and Industry (ACCI) media release supporting the bill arrived in my Parliament House office before the bill had even been tabled. A case of advance notice or perhaps divine faith?

Courts replace the Commission

As the Commission is progressively sidelined, the courts are more and more being used to deal with disputes. As Justice Nathan noted, the current act has reduced the industrial parties to a fight 'redolent of the Grecians and Spartans'. He added that the courts had become the new industrial battleground as the act invoked 'ritualised mayhem in which only the innocent are slaughtered.'

As issues get bogged down in legal red tape and soaring costs, workers, unions, companies and industry associations are the losers. Few Australians would see this as a positive development.

Industrial Relations Getting More Complex

All this produces an even more complex, increasingly legalistic framework.

"One of the stated objects of the 1999 second wave was to continue to remove unnecessary complexity from the system so that in the words of Mr Reith 'workers and employers get a real say, not just lawyers, management consultants and union officials' (Reith, 1999:7853). Similarly, in 1996, when introducing the Workplace Relations and Other Legislation Amendment Bill, the Minister said it, 'promoted a legislative framework without unnecessary complexity (Reith 1996:1298)'

In the name of simplicity his 1996 Workplace Relations Bill was a massive 306 pages. His Workplace Relations and Other Legislation Bills were more than 140 pages in length while the second wave bill was 299 pages. In all, in just three years this government's industrial relations bills, which they claim are designed to simplify matters, have totalled more than a whopping 752 pages!

As if to assert one of his weaknesses as a strength, Peter Reith claims that his laws simplify the system.

To put that into some perspective, the former Labor Government's major industrial relations bill, the Industrial Relations Reform Bill, was 193 pages.

As the government has sought to add ideological obsession on top of ideological obsession, they have created a practical and legal monster. We need to reduce the complexity and confusion that is today's industrial relations law.

Prolonged Strikes on the Rise

The gladiatorial nature of the current federal system is producing an increase in prolonged strikes. Contrary to government claims, Dr David Peetz's submission to the Senate second wave inquiry has clearly demonstrated this outcome.

I have updated Dr Peetz's table with the most recent data to November 1999. The trend identified by Dr Peetz is still apparent.

His study, which looks at working days lost since 1966, analyses the data according to the systems in place at the time. The first period, 1966-82 covers the period prior to the accord. The second, from 1983-91 saw a centralised system under the accord. 1992-96 was the period of a decentralised accord process. And of course, 1997-99 saw the operation of this government's Workplace Relations Act. Two important conclusions become apparent.

Firstly, the substantial fall in days lost occurred under the accord system.

Secondly, under the current system long term disputes have risen. Disputes of 10 to 20 days duration and more than 20 days have increased under this government's policy. Intractable disputes, with all the deep seated and long lasting bitterness that go hand in hand with them, are on the rise.

Of course, many of these protracted disputes are exactly the types of situations where the commission should have a greater role - unfortunately denied to it by this government.

With many significant agreements due to expire in the year ahead, it is not beyond our imagination, and maybe our expectation, that these figures will worsen. This is particularly so in an environment where worker alienation is so strong and the once authoritative independent commission has been kneecapped.

What are our industrial relations laws doing to society?

Government has a responsibility to monitor the impact its policies are having on the fabric of our society. That applies to industrial relations as much as anything else.

As a community we need to ensure a balance is struck between work, family and personal commitments. The Australian Industry Group's national study of worker attitudes last year gave us an insight into the broader consequences of our current system. I referred to it in some detail last year.

Work Life Balance

Failure to balance the increasing pressures of work and personal life can result in loss of productivity for firms, increases in stress and related problems for workers and their family, and a worsening of social problems.

In March Health Minister, Michael Wooldridge, gave an excellent example of the costs we bear in failing to address these issues. Talking about the problem of depression related illnesses he told parliament;

"...there are as many days lost through depressive illness in a fortnight in Australia as there are through industrial disputes in any 12-month period."

If the government is fair dinkum about improving labour productivity, they would focus on these issues, not their usual agenda of union bashing.

Over the years, campaigns have been waged to shorten workdays, yet we see data indicating that many people believe they are working longer hours than ever before. What's more these extra hours are now usually unpaid.

In the last few months workers in industries as diverse as medicine and long distance truck driving have been trying to alert the community to the dangers of lengthy workdays.

Yet the Australian Chamber of Commerce and Industry (ACCI) have said as recently as 8 May this year that regulations for working time arrangements are not wanted and that long hours do not have a detrimental affect on a person's health .

This is at odds with the Australian Medical Association that is concerned that junior doctors are working shifts that are too long.

Dr Kerryn Phelps the NSW AMA President points out that;

'...studies had shown that after 18 hours of being awake, an individual's performance level is equivalent to working with a blood alcohol level of 0.05 per cent '

Consider the implications of this for long distance truck driver. Little wonder that the TWU is conducting a campaign on these issues at the moment.

Other occupations are also subject to the debilitating affects of fatigue.

An important role exists for the industrial relations system to protect workers from exploitation that adversely affects their health and the well being of others.

A Labor Alternative

Labor holds the view that our industrial relations system must take account of the inherently unequal power balance existing between an individual worker and their employer. This has been long accepted in Australian society and by virtually all Australian governments prior to the current government.

This inherent imbalance requires a collective approach within the industrial relations system if it is to deliver fairness.

The government's model of collective bargaining, without an umpire and with no provision for parties to negotiate in good faith is the worst of all worlds. We saw evidence before the Senate inquiry into the second wave of employer demands - often in AWAs - being put to workers on a take it or leave it basis. Too many negotiations are either shams or not conducted at all. The government has adopted this practice with some of its own employees - irrespective of whether they want a collective agreement or not. Public Service departments where staff have voted by as much as 83% for a union negotiated collective agreement have been denied them.

Labor will ensure that the test of 'good faith' is applied to all bargaining situations.

In addition, where workers express a clear preference for a particular type of industrial instrument to cover their wages and conditions, the parties in that matter will have an obligation to negotiate in good faith to successfully conclude such an instrument.

Fostering industrial relations best practice and knowledge

We need as a nation to foster a better understanding of industrial relations across our community. It is important for reasons of equity and efficiency that those involved in the broad industrial relations community are well informed about the practices and procedures of our system.

But we need to do more then have people skilled in the technical aspects of industrial relations. We need a far more comprehensive approach if we are to have world's best practice in Australian industrial relations.

Labor will promote the knowledge and skills level of the broader industrial relations community beyond simply technical industrial relations competencies. We will establish cooperative mechanisms with participation from the wider industrial relations community to consider current issues and future developments in industrial relations.

Industrial relations must be seen in the context of broader industry, employment, education, and social issues.

Government should be skilling up the wider industrial relations community - not dumbing it down.

International standards

Throughout all this our international standing has slipped. Today, Australia finds itself criticised by an ILO panel of experts for breaching ILO conventions. This government's response is either to withdraw from these conventions, as it is in the seafaring industry, or to berate and attack the ILO.

Australia has slid from being among the most respected nations in labour relations matters to now being subject to investigation and criticism for failing to meet its obligations.

Labor's industrial legislation will observe international standards. I am personally committed to restoring Australia to a position of international leadership and pride in industrial relations matters.

Corporations power

The Minister has floated on a number of occasions the possible use by the Commonwealth of the corporations power to deal with matters that have previously been seen as industrial relations issues.

Having failed to get his second wave laws passed. Having;

� also lost the vote to transfer important industrial relations powers to the newly created Federal Magistrates court;

� had his second lot of changes to unfair dismissal laws defeated;

� had his bill attacking workers in the seafaring industry massively amended; and

� been forced to do something about employee entitlements of insolvent companies only to see his good friend the Treasurer buy into the issue supporting an insurance based scheme - not dissimilar to Labor's plan.

Corporations powers are increasingly looking like the next big issue.

I welcome the opportunity to explore the potential this head of power has for dealing with a number of industrial relations matters. Unlike Mr Reith though, I don't see this as a replacement head of power for existing functions carried out by the Commonwealth.

Nor do I see it as a vehicle for reducing safety net provisions - a course he may well take if the Government loses the CFMEU's High Court case dealing with the constitutionality of restricting existing awards to twenty allowable matters.

Given his publicly stated views that minimum wages are 'too generous', Mr Reith would no doubt be attracted to the prospect of using the corporation power to set minimum wages and conditions by legislation. Adopting that approach would mean he wouldn't have to worry about the AIRC at all - nor would he have to set up a new tribunal as proposed in his December 1998 letter to the Prime Minister.

I look forward to the Australian people expressing an opinion at the next election about whether they want their industrial safety net set by Mr Reith or an independent commission.

Use of the corporations power also raises the possibility of regulation of certain non-employee contractual arrangements. Just as some states extend their industrial relations laws to cover certain contractors, notably dependent contractors, the Commonwealth could likewise regulate this area using the corporation power.

The real question that Mr Reith doesn't want anyone to ask though is whether he sees any role for the use of the corporations power to effectively replace the existing state systems. Corporations power being used to establish national common rule federal awards could force the Howard/Reith standard onto every state. Again, we know courtesy of the Ministers' December 1998 leaked letter to the Prime Minister, that he is attracted to the elimination of state industrial relations system. He even raised with the former NSW Leader of the Liberal Party, the prospect of a Collins Liberal government doing a Kennett and handing over those State powers to him.

Employers, unions and state governments will want to think long and hard about the direction in which the use of the corporations power will take us. The defacto abolition of state systems might appeal to Mr Reith's ambitions, but it would make the state's rights debate over mandatory sentencing look like a kindergarten picnic.

Conclusion

The ALP's national conference will meet in Hobart in July. The draft policy for consideration at that conference will be publicly available next month.

When it is available, you will see a clear choice offered between a Reith/Liberal model, and a Labor model.

The people of Australia will have a very clear choice. A Labor system, based on the sorts of principles that underpin industrial relations systems in Labor states such as New South Wales and Queensland on the one hand; or a continuation of the divisive and biased system promoted by Peter Reith and this government.

I am confident the Australian people will agree that the Reith gladiatorial system has no place in an industrial relations framework for a modern and prosperous Australia as we move into the 21st century.

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  Issue 55 contents

»	Fiji Faces International Union Blockade
»	Workers Return to Dump Reith's Third Wave
»	Budget Raises More Questions than Answers
»	Teachers Finally Achieve Satisfaction
»	FairWear Campaign Targets Uniforms
»	Rio Tinto Appeals for Industrial Peace
»	Beer Hike Sparks Worker Concerns
»	Libs Fail to Block Family Friendly Laws
»	No Joy For 'Back Door' Pete
»	Angry Truckies Converge on Border
»	Unions Dues Test Case Looms
»	Why Solidarity Messages Mean Something
»	Radio Free East Timor Rocks

»	The Soapbox
»	Sport
»	Trades Hall
»	Tool Shed

»	Neale's Spot On!
»	Silence on the GST

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