Interview: Public Defender
Legal: Craig's Story
Unions: Wrong Way, Go Back
Politics: Queue Jumping
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International: Under Pressure
Poetry: Billy Negotiates An AWA
Review: A Pertinent Proposition
The Locker Room
Truth in Advertising
What a Woman!
It's Not Pretty
The Federal Government's WorkChoices document is strongly premised on notions of freedom of choice, freedom of bargaining, and leaving it to the parties at workplace level to reach agreements and resolve workplace issues for themselves.
However, when you drill down into the detail of WorkChoices, the rhetoric of freedom, choice and bargaining between "equals" is revealed to be largely illusory. Apart from the many ways in which WorkChoices skews the bargaining equation in favour of employers, the heavy hand of government intervention is omni-present - that is, bargaining and agreement-making are to be left to the parties, except where they might arrive at an outcome that the Government does not approve of.
This is most clearly evident in the proposed "outlawing" of certified agreement provisions for the resolution of unfair dismissal claims, and other so-called "prohibited content" in agreements (eg provisions mandating the involvement of unions in dispute resolution, or trade union training leave clauses). In response, employers, employees and unions should consider the viability of capturing these "outlawed" provisions in agreements outside the certified agreement framework - that is, in "side-agreements" or common law contracts (although for this strategy to be effective, doubts as to whether unions can legally enforce such agreements on behalf of their members will have to be resolved).
Far from leaving it to the parties to sort things out, the following aspects of WorkChoices further illustrate that the Government is prepared to go to quite extreme lengths to shape the nature, processes and outcomes of workplace bargaining and the resolution of workplace issues - overwhelmingly in order to strengthen the position of employers:
• In addition to the exemption from unfair dismissal claims for companies with less than 100 employees, WorkChoices closes off claims relating to dismissal on the grounds of operational requirements, or redundancy, for employees in all businesses - so employees in larger companies will now only be able to bring claims where the dismissal relates to alleged misconduct or poor performance, and then only if they have been employed in the business for at least six months.
• WorkChoices allows workplace agreements to be terminated, after their expiry date, by either party on 90 days' notice - currently, agreements continue to operate until replaced by a new agreement. This proposal will enable employers to put an end to the deal at their whim, with workers then falling back onto the five basic conditions embodied in the Australian Fair Pay and Conditions Standard.
• More comprehensive agreements reached under the current Workplace Relations Act can be replaced by new agreements made under WorkChoices, even before the current deals have expired.
• WorkChoices introduces secret ballots for protected industrial action, with unions having to obtain both a majority turnout of eligible employees in the ballot, and a vote in favour of the industrial action by a majority of those voting. This sets the bar higher than the UK secret ballot provisions, which only require majority approval by the workforce. However, the UK laws impose highly technical requirements for the conduct of industrial action ballots, which have proven to be a legal minefield for unions. The Howard Government's legislation will no doubt contain similar detailed rules, with the aim of making the exercise of already tightly limited protected action rights even more difficult for Australian unions.
• WorkChoices gives sweeping powers to the Workplace Relations Minister to end strikes in "essential services". This effectively bypasses the AIRC's current powers to suspend or terminate a bargaining period where industrial action threatens the health or well-being of the community, or is causing damage in a key sector of the economy. The AIRC will be left with the power to resolve disputes that are the subject of an essential services declaration by the Minister. However, in determining the outcome of such disputes, the AIRC will be subject to specific legislative direction to consider matters including "how productivity might be improved" in the business and "the employer's capacity to pay".
• WorkChoices will limit the operation of the "transmission of business" provisions of the WR Act, so that awards and agreements will only "transmit" to a new employer when employees also come across to the new business. Even then, transmitted awards or agreements will only operate in the new business for 12 months. This is all intended to address what the Government sees as misplaced adventurism on the part of Federal Court judges, who have taken an expansive view of the transmission of business provisions in recent years. This has resulted in awards and agreements being found to "transmit" in a wide range of outsourcing and privatisation contexts, although the adverse effects of this for employers have already been considerably addressed by legislative amendments and the High Court's Gribbles decision in March this year.
• Knocking perceived judicial (mis-)adventurism on the head is also behind the proposal to reverse the onus of proof in applications for interim injunctions under the "freedom of association" provisions. Unions have used these laws extremely effectively - most notably in the 1998 waterfront dispute - to obtain court orders prohibiting employers from going ahead with corporate restructures, outsourcing and (at least in one case) introducing individual contracts, where there was an arguable case that the employers' actions were motivated by broader anti-union objectives. However, under WorkChoices, unions will have to prove not only that the employer's conduct was "prohibited" under the freedom of association provisions, but also that it was for a "prohibited reason" (the employer currently has the onus of disproving the latter element). The upshot is, it will be much harder for unions to utilise the freedom of association provisions to protect workers in the way they have been able to in recent years.
• In addition to stripping the AIRC of its conciliation and arbitration powers in all but a few limited situations, WorkChoices promotes alternative dispute resolution (ADR) mechanisms in competition with the AIRC. A model dispute resolution clause will be set out for adoption in workplace agreements, under which parties can "choose" (that word again!) to refer issues either to a private ADR provider, or the AIRC. Therefore, it seems that the AIRC will still be able to carry out the arbitral role that it currently performs under section 170LW of the WR Act, although parties will have to make it very clear in their agreements that they want this outcome. And while the Government is trying to steer the parties away from the AIRC, in my view it is likely to remain the preferred choice for assisting employers, workers and unions to obtain practical outcomes to workplace disputes.
Finally, the Government's reforms will result in a plethora of regulatory bodies in the workplace relations sphere - along with what's left of the AIRC, we will also have the ABCC, AFPC, OEA and an expanded OWS! As well as the manifestly one-sided nature of WorkChoices, the detailed level of regulation that it proposes shows that the Government's railing against the evils of "third party intervention" in industrial relations is nothing more than empty rhetoric.
Anthony Forsyth is Senior Lecturer in Workplace Law,
Department of Business Law & Taxation, Monash University
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