The Industrial Relations legislation in this country and environment within which it operates has been the subject of a continuing process of review and refinement over the past decade. Bill Mansfield, Assistant Secretary, ACTU.
These changes, together with the political and economic environment within which they have been nurtured has seen industrial relation policy at the forefront of public debate.
It is indeed unfortunate for this country that rather than move towards a common and equitable approach to the management of industrial regulation and workplace reform, we have seen these issues hijacked by frustrated conservative politicians as a means to product differentiate in their inexorable drift to the outer limits of the political spectrum.
As a result the certainty of direction and purpose that the harmony of complementary State and Federal systems of industrial relations could provide has been squandered.
In there place we are left with an ever widening chasm between the industrial relations agendas of conservative States and the Federal and Queensland Government’s approach to the issue.
The Federal system as recently amended by the Industrial Relations Reform Act is recognition of the need to balance the needs of the enterprise with the safeguards for workers , particularly the low paid.
This is achieved through the foundational elements of the Act.
- the encouragement of bargaining and the making of agreements
- the preservation of an award safety net
- a no disadvantage test against which any agreement must be measured
The role of both the industrial parties and the Commission itself have been profoundly altered as a consequence of the Reform Act.
The Commission’s role has become increasingly one of a conciliator obliged to encourage and facilitate the making of agreements. The arbitral functions of the Commission are increasingly orientated towards the maintenance of the safety net award.
The fact that the Commission’s role has been profoundly altered by the legislation does not mean, however, that it’s function has diminished in any respect. Indeed the Act now contemplates a hands-on role for the Commission in the conciliation and encouragement of agreements. The new provisions in the legislation that introduce the concept of good faith negotiation bring with them the power and the statutory encouragement for the Commission to regulate the negotiation process and to steer but not force the parties towards an agreement.
A system of industrial regulation with an increasing emphasis upon collective bargaining must, as in fact the legislation now does, place the emphasis and responsibility primarily upon the parties themselves to reach and maintain the integrity of agreements between themselves.
From a statutory perspective the Act recognises this responsibility through the incorporation of limited means by which an agreement between the parties can be rejected by the Commission.
There are three principle means by which parties can seek to formalise agreements between themselves:
Enterprise Flexibility Agreement; or through
Enterprise Flexibility provisions in awards
The enterprise flexibility agreement process is the one that has caused the greatest controversy and is the most recent incorporation within the landscape of enterprise bargaining.
It is no secret that the trade union movement hold and maintain reservations about a process of bargaining that enables an aggregation of individuals to collective reach agreements that do not include the union responsible for maintaining the safety-net award underpinning the bargaining process.
Having had the opportunity of being able to consider the enterprise flexibility agreement process has been utilised our concerns have been heightened rather than allayed.
Of the approximately 44 enterprise flexibility agreement applications that have been lodged to date, there is a disconcertingly common theme running throughout a large proportion of these documents and the processes that have attended there introduction.
It is not coincidental nor with the intent of sabotage that most enterprise flexibility agreements are vigorously opposed by unions with an interest in their terms. All too often they provide conditions that as a total package breach the no disadvantage safeguard.
The fact that the unions concerns in this regard are real is apparent when one considers that of all the enterprise flexibility agreements approved by the Commission, currently 15 in total, only one has not required substantial amendment by the Commission in order to meet it’s statutory obligations. The fact that unions are involved in the vetting process of these agreements preserves the integrity of the no disadvantage test and thereby avoids its dissolution flowing into the certified agreement stream and consequently and ultimately undermine the award safety-net itself.
The ACTU’s principle concerns with the enterprise flexibility process as it is being practically implemented are as follows:
1. Enterprise flexibility agreements are commonly regarded as that stream of bargaining available to the non-unionised sector. It is however apparent that a substantial number of the agreements lodged for approval with the Commission under section 170NA and the conciliation applications for enterprise flexibility agreements under section 170QH include unionised or partially unionised workplaces. It was never the intention of the Government as evidenced by the Minister’s Second Reading Speech when introducing the Reform Bill into Parliament to see enterprise flexibility agreements applied into unionised workplaces. The emphasis was always intended as Minister Brereton’s speech to Company Directors in April 1993:
Given the comparable tests and operation one can only question why in unionised or partial unionised work places certain employers have a stated preference for enterprise flexibility agreements.
The answer has more to do with ideology and ultimate agendas than the practical considerations of effective and efficient workplace bargaining.
2. Many enterprise flexibility agreements seek to undermine the role of the union in an ongoing sense. This is sought to be achieved by means of provisions in the Agreement itself that effectively lock out the union from any future involvement in the workplace such as a restriction upon the awards right of entry provisions or a removal of the unions involvement in the dispute settlement procedure.
3. Some agreements contain terms that provide an undesirable level and indeed inequitable level of management discretion not only upon work processes but the ongoing terms of the agreement themselves – for example the enterprise flexibility agreement’s terms may be such as to apply the company’s staff manual as varied from time to time.
It is little wonder in circumstances such as these that the union movement considers enterprise flexibility agreements have little to do with efficiency and much to do with de-legitimisation and de-unionisation.
Enterprise flexibility agreements are, despite there irritant value, not a profoundly absorbing issue that some in the media may wish to portray them as. They are on the outer parameters of the real game that is bargaining for mutually beneficial change not political agendas.
The real work is going on in certified agreements, with approximately 2,500 certified agreements and almost 55% of the Federal award population covered by these agreements. By a reasonable standard of success the proliferation of enterprise bargaining has been profound in the period of less than 3 years that it has become formally obtainable objective.
There are of course those who still argue that it is not enough and not quick enough.
These critics fall broadly into three categories – the accountants, zealots and the boffins (perhaps the Industry Commission falls into all three categories).
They are united in the lowly status to which they relegate the workforce and local management in their grand vision.
The ACTU and our affiliates much prefer performance over puerile or prurient objectives.
The introduction and development of enterprise bargaining is a substantial advance; certainly the success of the federal legislation is in stark contrast to the progress of various State jurisdictions with Queensland leading the way with 10% of all State award employees and NSW next at 7%.
These figures illustrate what system the practitioners prefer, understand and use.
A common criticism of the Federal enterprise bargaining system is that there is an unrealistic emphasis upon quality and not quality of the agreements. A case of “never mind the content feel the width”. It is however patronising to suggest that workers, unions and management need to have the content of their agreements evaluated and approved. Unless you believe in an omnipotent being there is nobody nor institution capable of developing a more critical or incisive analysis of any such agreement. The parties make the agreement and subject to the legislative safeguards, they bear responsibility for its effect. The alternative would be a procedure of Commission scrutiny that would effectively bring to an almost complete hold the produce of bargaining whilst the approval processes took place.
There has been considerable speculation about the fine tuning review that the Minister for Industrial Relations has indicated should occur. The most amusing aspect of the public response has been from employers who interpret this as an opportunity to perform a major overhaul upon legislation that is operating effectively by any comparable or reasonable standard.
That is not to say that the ACTU does not believe that certain aspects of the legislation can not be improved but by and large we accept the fundamentals of the system to be adequate.
I would like to take this opportunity to give you an understanding of the type of changes that the ACTU will be proposing to the Minister for the purposes of the fine tuning review.
1. The re-insertion of an object that inexplicably went missing from the pre-Reform Act Objects namely the Commission proceed with a minimum of legal form and technicality. I don’t believe there would be too many non-lawyers appearing before the Commission that this is a laudable objective albeit one that is difficult to achieve.
2. The definition of industrial dispute should be deleted in order to apply its full constitutional scope, thereby avoiding a disparity between matters that could be constitutionally dealt with by the Commission but are restricted as a consequence of statutory inhibitors.
3. The fast-track provisions into the federal jurisdiction could be improved by confirming the Commission’s power to make interim awards prior to the finding of the existence of an industrial dispute.
Also the Commission powers and procedures for applying interim relief should be expressly stated to apply on an interim and ex parte basis in a similar manner in which such relief can be granted by civil courts.
4. By widening the criteria of a State jurisdiction that would attract the fast tracking process and thereby facilitate the federal jurisdictions operation.
5. Insertion of a new object in Section 170LA being the Objects in the Bargaining Section VIB to apply Australia’s Treaty obligations and in particular the ILO Convention concerning the promotion of collective bargaining. Similar considerations should be replicated in the Good Faith bargaining provisions.
6. The addition of provision which preserve the rights of eligible unions to be involved in the process of negotiating agreements at the earliest practical opportunity.
7. Provide the Commission with power to arbitrate a paid rates award on application from an aggrieved party in circumstances where the Commission has terminated a bargaining period because of the other party’s bad faith in negotiation.
8. Ensure that enterprise flexibility agreements only have application in non-unionised workplaces.
You may gain the false impression that enterprise bargaining is driven by legislative imperatives rather than practical ones. Indeed the legislation provides an important platform to launch bargaining but it does not assure success nor dictate the terms of the outcome, as always the industrial parties must take responsibility for that.
I am please to say that recent decisions of the Commission have facilitated the prompt understanding and practical implementation of the legislation. In this regard there have been three particularly noteworthy decisions:
1. The August 1994 Review of Wage Fixing Principles.
2. The September 1994 Safety Net Adjustment Decision.
3. The Full Bench Decision Concerning ABC and PSU clarifying the rights of Protected Action and Good Faith Bargaining.
Whilst each of and every aspect of these decisions did not address the ACTU’s preferred agenda a number of important developments have been effected by the decision corporately:
(a) Wage Fixing Principles have been devised to apply the new scheme of the amended Act and in particular place an emphasis upon bargaining.
(b) The Accord Mark VII wages outcomes and in particular safety net adjustments have been in substantial measure assured.
(c) The concept of bargaining is encouraged through the obligation that an employer must formalise enterprise bargaining agreements with their employees or otherwise fact the prospect of further safety net decisions having application.
(d) The right of a union to pursue protected industrial action in support of its bargaining claims has been clarified and effectively applied.
It is apparent that a whole new frontier has opened up before us and the opportunities presented by it are limited only by our imagination and ingenuity.
Perhaps there are just two further impediments that threaten to derail the process of bargaining based on mutually beneficial outcomes.
The first is an increasing level of aggressively anti-union activities by companies who perceive collective bargaining and unionism to be contrary to company interests – for example CRA. Such a direct assault upon the collective security of working people necessitates an equal and opposite reaction.
An inclusive, mature society must also recognise the rights of association not in its jurisprudence, but as part of it’s moral basis.
Secondly the furtive and divisive efforts of various State Governments to destroy the award system through legislative action.
Such a process will only serve to polarise the community and hasten the demise of State systems of industrial regulation.
Finally the resource base of the federal Commission to deal with an ever expanding workload must be effectively and promptly addressed.
A Commission without adequate resources equates to rights without remedies.
The necessity to deal promptly with unlawful termination conciliation, the bargaining processes and the minimum entitlements provisions together with the more traditional conciliatory and arbitral functions necessitates and generous and sympathetic allocation of resources. I should recognise in this regard that both the Commission and the Industrial Relations Court appear to be working assiduously at harmonising their responsibilities.
Also the Government has adopted very worthwhile short term measures to help the Commission deal with its workload to deal with the backlog of termination conciliation proceedings.
The trade union movement in this country has vigorously embraced the need for change. We have modernised our structures and have revised our methods to operate effectively and responsibility to members needs.
Whilst changing our processes we have seen working people contribute inordinately to the national good.
Labour unit costs are down almost 10% for the decade of Labor in Government, workforce productivity is the highest improver in the OECD to name but a few. Despite such a performance we don’t desire accolades but we deserve a good each way bet on the basis of past form if nothing else.
Bill Mansfield, ACTU Assistant Secretary. 21 – 23 October 1994