Fair Work, or Back to the Future?

The Deputy Prime Minister has tabled the government “Fair Work Australia” legislation in parliament.

The legislation continues to provide a differentiation of employment security, depending on the size of the employer. If the employer has less than 15 employees, workers need to remain employed for a year to seek obtain protection from unfair dismissal. Currently an employer has to have over 100 employees to be subject to legislation relating to dismissal.

There is a broader range of legislated minimum employment standards. and an opportunity for arbitration for settlement of wages and conditions applying to “lower paid” sectors of the workforce.

Taking protected industrial action will be easier, with industrial action being possible if 25% vote in favour of the action, as long as 50% of the workforce have participated in the vote. The secret ballot for protected industrial action remains in place.

Bargaining will become available for industrial matters, not restricted to those relating to employment, as at present. Union rights can now be the subject of industrial action.

Vital questions are –
– Does this legislation breathe fresh air into our system of employment and industrial regulation?
– Does it rid us of an unbalanced, over complicated and moribund remnant of the previous government?
– Is it a return to legislated relevance of unions, who are unable to define their own role in the bargaining process?

Some will point out that while unions represent about 14% of workers in the private sector, the legislation –

– allows unions to access non-union employee records;
– increases union rights to enter the workplace;
– requires union members to have the union as their default bargaining representative;
– allows unions to force employers to disclose confidential business information.
– allows unions to intervene in an agreement even where they have perhaps only a single member.
– expands the matters over which industrial action can be taken

Other questions –

– AWAs are gone. In name or in practice?
– Should unions be able to take industrial action over matters that are not part of the employment relationship?
– Should there be a right to take industrial action over issues such as payroll deduction of union fees, or union involvement in the induction of new employees?
– Will the legislated role for unions promote an increase in disputed union membership? Will we see the re emergence of the union turf wars in the Western Australian mining industry?

To date, the government has sought a careful balance in dealing with this issue. It has moved the balance towards union rights, as well as strengthening the employment safety net.

The question is whether the move tips the balance too far, or whether it is now a fair balance.

Possibly all the doomsayers that predicted that we would by now be ruled by union bosses will have to bite their (our?) tongues (can people bite their tongues and eat their words at the same time?).

Wait until the next election when the unions will really, definitely, undoubtedly, truly, take charge. BOO!

Tom of Melbourne

28 Responses

  1. A couple of other observations –

    I see that Justice Paul Munro (former senior deputy president of the Industrial Relations Commission) has been critical of the legislation. He seems to think that there is too much political interference in workplace relations.

    Really? What a clever observation by Paul!!

    I always suggest that it is highly politicised because many unions maintain a direct political affiliation. When they become a part of a political party, they assist politicisation of their role.

    A few years ago there was a lot of disputation in WA between some of the unions with coverage of mining and construction.

    It was very costly to employers without any apparent benefits to workers.

    The government will have to be careful to ensure that this type of coverage disputation does not recommence. I’m not sure whether the legislation provides adequate safeguards in this area.

  2. Tom,

    Good thread, but I think it is going to be a while for us to digest the legislation, and to let minds better than our work out what it all means.

    I have tried to find some analysis on the innertubes, but cannot find any – if anyone has a link can they put it up on here.

  3. And the previous IR legislation wasn’t ideological and business doesn’t influence the politics either?

    The world has seen what happens when things are deregulated and business is allowed unfettered reign. Do that for IR and WorkChoices MkII would look tame.

    So I always suggest that it is highly politicised because business maintain direct political influence, and this is no difference for this government, and furthermore I contend business has a greater influence over the Rudd government than unions do.

  4. Its a step in the right direction. The whole law is discrimitary though. If you happen to be one of 14 or less, then your unfair dismissal rights are non existent, if you happen to be in the BLF you have no rights much at all. This is a good start, but smacks of popularism and a fear of a smear campaign from the opposition and business. Why not have some balls and give every worker the rights they should be entitled to. The ALP has only got this partially correct, and I would hope that they have more balls in future to tread the path they should and have no fear of opinions by the largely Liberal orientated media.

  5. Joni – “I think it is going to be a while for us to digest the legislation, and to let minds better than our work out what it all means.”

    I think there is more intelligence on this site, than among those that will be debating this subject in the parliament.

    Adrian, I think there is a big difference between a general political orientation (eg business to conservative) and actual political affiliation. Being affiliated is more than support and contribution, it means that the organisation forms part of the party.

    Business and the ALP are getting along quite well. Necessity really.

    As I’ve commented in the past, I prefer the US Democrats model. They reflect their constituency more closely. They seem to do pretty well from time to time.

  6. Don’t agree Tom. Business will align itself to whoever it thinks will give it the greatest latitude for all the money it donates. Preferably that means total deregulation and turning a blind eye to bad practices as much as possible. That behaviour mostly belongs to the conservative side of politics and business knows it.

    Also business top management is heavily right orientated as Hendy and most of the business councils and associations prove. Just as some union leaders move to politics on the Labor side, some business leaders (Turnbull, Hendy etc.) move to the Liberal side.

    Having said that Heather Ridout has been a revelation.

  7. “Being affiliated is more than support and contribution, it means that the organisation forms part of the party.”

    True! Unions are perhaps over-represented in the ALP power elite, but the Party doesn’t run this government in much the same way it didn’t run the Goss or Beattie government. Sure those Premiers didn’t spit in the unions’ face but the truth is that when the crunch came the unions lost.

    I stress that when it comes to ALP conferences and policy making forums, the Unions, if they really push it, will have their way but it is now a hollow victory. The clash between what the Party wants and what the Rudd Government wants will invariably result in a Rudd victory.

    Both sides of politics are now devoid of their traditional social bases. The world has moved on. Blair, Brown, Rudd and Obama to name but a few herald a new approach to government, which I admit I don’t really understand yet, but it is characterised by ‘what works’ rather than by ‘what should work’.

    The new ideology is that the old ideologies are dead. What the new ‘common sense’ is will take some time to emerge and evolve but ‘extreme capitalism’ is now in the historical dustbin.

  8. Tony

    We understand that you do not like the close affiliation that unions have with Labor – but it is there for all to see.

    But why should they change? People know and still vote for Labor.

  9. Nature 5 – so unions don’t add anything to ALP policy. All they do is monopolise preselection.

    This I agree with!

  10. Some discussion over at LP

    Gillard’s new IR laws and the business response:
    http://larvatusprodeo.net/2008/11/26/gillards-new-ir-laws-and-the-business-response/

  11. Pretty fair according to Ross Gittins, worth a read in full.

    Why Gillard’s Fair Work Bill is a fair cop:

    http://business.smh.com.au/business/why-gillards-fair-work-bill-is-a-fair-cop-20081128-6mz1.html?page=fullpage#contentSwap1

    “…although much publicity has been given to the decision to permit union representatives to enter work sites where they have no members but there are workers eligible to be members.

    Only someone who regarded the role of unions as fundamentally illegitimate could worry about this. In practice it will mean little.

    More than 80 per cent of enterprises don’t have a union presence. This is partly because the workers in those enterprises don’t have a great desire to join a union and partly because unions don’t have the resources to organise the many small sites.

    Some employer groups are arguing that since only 14 per cent of private sector employees are union members, unions should be given no rights. A more sensible attitude would be that, since the union movement is in serious decline, any rights it’s given will make little difference.

    Fair Work’s modest modification of Work Choices’s anti-union provisions is likely to make a difference only in enterprises with a union presence that management is seeking to end. The American-led Telstra, for instance…”

  12. Well kittylitter, that depends on whether you take the perspective that the job of unions is to represent their members in obtaining good wages and conditions, or whether you think unions should be able to take industrial action over procedural matters that are of interest only to the union as an entity.

    The relationship between unions and employers ought to be based entirely on the relationship between the employees and the employers. I struggle to see why the relationship with the union is a separate one, requiring separate regulation.

    I think taking industrial action over related matters related to union issues allows the union too much latitude to veto outcomes.

  13. By the way, it wasn’t Workchoices that decided employment pertaining and non pertaining. It was the High Court in Electrolux , Workchoices only codifed the decision in legislation.

  14. The new ideology is that the old ideologies are dead. What the new ‘common sense’ is will take some time to emerge and evolve but ‘extreme capitalism’ is now in the historical dustbin.

    Not so dead when some think that turning our education system into free vocational training for business, is a good thing.

    Let the capitalists pay to train their own staff.

    Joni, I’m sorry but I do not consider the ratbags that make up our parliament to necessarily be ‘greater minds than ours’.

    The ALP’s IR ‘reforms’ are only slightly better than the Libs.

    Industrial action is still illegal outside of bargaining periods, so is diluting of the right to strike. Until they change this, and abolish the ABCC, repeal the BCII laws, and ensure every employee is able to seek redress over abuse and illegal treatment by employers they will be guilty of entrenching the pwer imbalance between employees and employers.

  15. Adrian (6) I think business aligns themselves to whoever is in Govt. They also tend to hedge their bets and donate to both parties. I’m sure the amounts increase when a particular party is in Govt.

    It would be fair to say that both main party leaders would be business friendly, and no lovers of unions.

  16. It strikes me that ‘Fair Work’ is Orwellian as ‘Workchoices’.

    Both are anything but.

  17. Tracie, “Industrial action is still illegal outside of bargaining periods, so is diluting of the right to strike”

    No one force unions to sign agreements.

    If unions want the luxury of behaving in an undisciplined manner, taking industrial action more regularly, they should not make agreements that prevent this.

    Once you enter into an agreement, and accept the certainty of the pay rises, and conditions, employers are entitled to stability and predictability in their operations.

    Some unions make agreements that commit to industrial stability, and then renege by taking industrial action. I think this is unethical.

    As I’ve suggested to others in the past, you should have a look at the sworn evidence of the royal commission. You might not agree with the recommendations and outcome, but the evidence is interesting.

    Also do a search on Saizeriya industrial dispute. This behaviour is the reason that there needs to be strong, continuing tight regulation of this sector. The greenleft tends to avoid this type of material.

    Saizeriya had plans to build multiple food production factories in Melbourne, but the first was so painful that they cancelled the rest. Great work by the unions!!

  18. How about Saizeriya usurping food inspection processes and it’s melamine tainted dough?

    Also the Vic government is at fault as was Saizeriya’s IR advisor and lawyers giving them the wrong advice, and of course Saizeriya for it could have stopped this from the start. That it was willing to pay these large amounts of graft says a lot about its business practices (which is why there is a sell advice on its stocks I guess).

    You bring out the odd occasion unions have caused loss of investment but what about the plethora of bad business practices and management stuff ups that have caused far more failures, more loss of jobs and loss of investment, along with business reneging on agreements, which is often the cause of disputes?

  19. Tom the problem occurs when employers change the rules after the fact or do not honour the agreement for any particular reason, as was the case in WA.

    Is it reasonable for workers to have no recourse other than to wait until the next bargaining period?

    The Cole Commission (like most) reached the conclusions the Govt wanted. There was little attention given to breaches of OH&S by employers and was little more than a witch hunt.

    Howard (and now Rudd) have diluted the rights of workers in favour of business (again).

    If the ACTU let this stand (and it looks like they will) they are probably as corrupt as you say, and clearly too close to the ALP. It would certainly appear that the rights of workers are the last thing on their mind.

  20. Tracie, I’m not sure what rules were changed on the workers in WA. I think you need to look at the leadership they were getting from the union.

    If there are safety issues during an EBA, there are safety regulators and inspectors with wide ranging powers. If the agreement is breached, it can be enforced by employees or the union through courts or the industrial commission.

    Some are simply mindlessly militant, and prefer to use industrial action as a show of strength, regardless of the merit of the case.

    As I said, if they want the luxury of this militancy, then don’t sign agreements that specifically rule out this type of action.

    Adrian, of course the state ALP government was almost as culpable as the unions. The government recommended the industrial strategy.

    I agree that more businesses are likely to fail due to poor management and the GEC, but I have never seen such wanton destruction of investment and value as occurred here. For what? The action was not on behalf of workers, community or the environment. It was simply a destructive union power play.

    As for any quality problems, I’m not aware of them. But then I don’t have anything to do with the company.

  21. Tom of Melbourne

    From memory, there were numerous safety issues, which were brought forward by the union rep who ended up getting sacked.

    From an outside (and fairly biased) perspective, the sacking of this individual looked very much like pay-back from the company.

    And, all of the issues brought forward by the individual (on behalf of the workers) were rectified by the company. So it looks like this began as a safety issue, but escalated after the sacking.

    It looks like pure intimidation on behalf of the employer.

  22. Tracie, I’m not sure what rules were changed on the workers in WA. I think you need to look at the leadership they were getting from the union.

    If you don’t know what the issues are Tom M, how can you be so confident that the union are at fault?

    It looks to me like a clear case of an arrogant employer not honouring agreements.

    From Greenleft Weekly: Newspaper incites violence against CFMEU

    Leighton, well aware that the CFMEU was recommending a return to work, attempted to further intimidate the workers by insisting on a meeting with them half an hour earlier at which management threatened immediate sackings, legal action and the loss of all entitlements if the strike continued. Knowing that each striker and the union faced a financial nightmare, the workers voted to return to the job and to pursue Ballard’s reinstatement in the AIRC through an unfair dismissal claim.

    In the AIRC the next day, Leighton agreed to pay Ballard an undisclosed sum of money in an attempt to prevent full public disclosure of some of the issues that have led to unprecedented industrial problems on the project. In a March 10 statement, Ballard declared that the dispute “was never about one individual and I don’t want their blood money. It was all about 430 workers who have been pushed to the wall”. He donated all of the proceeds from his unfair dismissal win to the Make a Wish Foundation for kids suffering cancer.

    For 18 months, almost since work on the project commenced, the job has been marred by Leighton’s attempts to whip CFMEU members into line with crippling working hours, lax safety regimes and constant flouting of agreements with the union. Even after winning a no-strike agreement before the AIRC last November, in which status quo arrangements were to remain in force, Leighton has continually changed its rules.

    Why would Leighton settle if they had nothing to hide?

    Despite your trying to paint the unions (and by association the workers) as being petty and vexatious it is evident they had legitimate concerns.

    If a party signs an agreement in good faith, the other party is obliged to alos work within the terms of the agreement, wouldn’t you agree?

    So you would have to be pretty biased to blame the unions, when it was Leighton who reneged.

    The trouble with the ABCC and the BCII is that they empower capricious employers, while completely disempowering the workers. By Rudd allowing this to continue he is condoning this imbalance of power.

  23. Tom R & Tracie – I think the fall out was a symptom of the aggravation on the project form an early stage. I recall (only recollection) that Leightons started work without a union agreement. They may have used AWAs or an employer “greenfield agreement”.

    The union objected and looked for reasons to engage in an industrial campaign.

    The fact that the industrial commission issued orders against the industrial action is indicative of an industrial campaign, as the commission would NEVER issue orders if there are bone fide safety problems.

    The commission will never make people work in unsafe conditions. It will issue orders when safety is being misused as part of an industrial campaign.

    The union backed off endorsement of the industrial action following the orders. It knew the consequences of ignoring an order of the commission. There are serious consequents for anyone that ignores a regulation such as an order – you get prosecuted for it, and orders have been around for as long as the commission itself.

    But by then some were hooked on the industrial misbehaviour. Safety is often the excuse to stop work, and in construction, sitting in the crib shed is usually more pleasant than laying railway track and installing signalling equipment.

    With regard to the payment to the union delegate, employers always settle. That’s why there has been so much criticism of the laws on unfair dismissal, (from others, not me) These cases can consume weeks of management effort, they are entirely distracting, lawyers get briefed, and they charge by the egg timer.

    Most employers see these cases as too costly to bother contesting, regardless of the merits. They pay “go away” money. They just want the work done.

  24. The fact that the industrial commission issued orders against the industrial action is indicative of an industrial campaign, as the commission would NEVER issue orders if there are bone fide safety problems.

    The commission will never make people work in unsafe conditions. It will issue orders when safety is being misused as part of an industrial campaign.

    This is the point. The commision and the law that empowers tham is weighted on the side of the employer.

    Unfortunately your ‘recollections’ do not seem to tally with available information, so unless you can demonstrate they are accurate, I’ll go by the evidence available. ie. why would Leighton’s pay out if they were in the right? Why do they appear to want to avoid public scrutiny?

    Of course you would say it’s all about money, but Leighton’s would have received more advantage by being vindicated by the AIRC. Than they choose not to do this is revealing.

    The issue was resolved between the company and the employees, but the Howard Govt choose to pursue action against the workers.

    On July 5, the ABCC, started legal action in the Federal Court Against the construction workers. The following evening, about 60 workers and their families were served with writs in their homes. They are charged with taking ‘unlawful industrial action’.
    They face the fines under special building industry legislation and for allegedly ignoring an Industrial Relations Commission order banning strikes on the project. The ABCC has asked the court to make orders against the workers and declaring that the workers pay the Federal Government’s costs of the court action!

    It is intolerable that any Govt in a so called ‘free and democratic’ country could condone these laws, or pursue such actions against workers who were clearly and consistantly provoked by their employer.

    If Rudd and the ALP were genuine about restoring fairness in the workplace they would cease this action against the WA 107. I guess they are not.

  25. Tracie – “This is the point. The commision and the law that empowers tham is weighted on the side of the employer.”

    Ever had a look at the CVs of commision members?

    They are hardly people that will put the profits of a company above a genuine safety issue. And that is the requirement, the safety issue has to be genuine, not fabricated to cause industrial disruption.

  26. They are hardly people that will put the profits of a company above a genuine safety issue. And that is the requirement, the safety issue has to be genuine, not fabricated to cause industrial disruption.

    Tom M, do you honestly believe despite much, much evidence to the contrary that corporations do not compromise safety (for either their workers or the public) if there is more profit to be made.

    Clearly, in your mind, it is all the fault of the ‘lazy employees’ who would rather be on strike than working – despite the fact that striking hurts the workers (who still have financial commitments to honour).

    It is because of unionism that we have safety standards today, NOT the benevolence of employers.

    It remains to be seen whether any of the traditional values still exist in todays unions, and whether they will stand for their workers or fall in behind the ALP. The time may come when they may have to grow a pair, or be exposed as the lickspittles they appear to have become.

  27. Tracie, the paragraph you quote referred to the industrial relations commission, NOT to employers.

    I think there are employers that will put profit above all else. Bodies such as the industrial commission exist to ensure they don’t get away with this.

    On the other hand, when employees misuse safety stoppages to further their industrial objectives, legally binding orders are issued. As happended in this case.

  28. Tom M you continually claim that workers misuse safety issues for various reasons (including laziness) but have no evidence that this is the case with disputes between Leighton’s and their employees.

    So I guess I am just supposed to trust you on this? Hardly. Given Peter Ballard’s actions in donating his settlement money to the ‘Make a Wish Foundation’ it would seem that personal gain is not the motive. Why is it so hard for you to accept that workers can and do have genuine grievances? You seem to have no problem accepting the opposite.

    BTW Leighton’s do seem to have a few ‘safety issues’.

    The Construction, Forestry, Mining and Energy Union (CFMEU) says a formwork fall that triggered a collapse at a Civic building site yesterday was not an isolated incident.

    The union says there was a smaller formwork collapse at the same Leighton Contractors construction site about two weeks ago.

    The construction company has confirmed the earlier incident occured but will not comment further as it is being investigated by ACT WorkCover.

    Such ‘incidents’ will no doubt continue to occur, and may even increase unless the Rudd Govt fixes the ABCC and it’s enabling laws.

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