The NFF and the Workplace Reform Agenda
In February 1986, at the Inaugural Seminar of the HR Nicholls
Society, a predecessor of mine at the NFF, Paul Houlihan, stated
in his address to the Society:
what this Society must seek to do, if it is to do justice
to the memory of HR Nicholls, is not to be intimidated by the
size of the guns against us but rather to be uplifted at the
potential of the rewards before us for all Australians if we
can make the necessary steps to change from a position where
industrial relations is seen as some form of alchemy available
only to the anointed members of the inner circle of the 'club'
and have industrial relations seen for what it is, the basically
simple business of getting someone to do the job for you in a
way and for a price which is acceptable to both parties.
The NFF position on industrial relations has certainly not
changed but those guns have certainly been seized, by those in
the industrial club would term as the 'enemy', and now should
be used with some considerable force courtesy of a Senate majority
to finally achieve what we have strived for all these years.
In developing the NFF reform paper update in mid 2004 it was
evident that nothing has changed since the late 80s. So despite
all that has occurred over the past 20 years, none of our key
objectives have been met.
Why do we seek change? Our opponents and even some employers
would argue that we've had reform, we've achieved some successes,
whether that be the introduction of enterprise bargaining, the
Workplace Relations Act or the Waterfront dispute. Let's be frank,
those so-called reforms can be classed into 2 categories either
a tinkering around the edges or a full assault at challenging
the status quo with some success.
The paternalistic stronghold of government regulation on the
employment relationship stifles productivity in this country
and treats employers and employees like contemptuous teenagers
that need to be locked in their rooms.
We now have a unique opportunity to implement real reform
for the ultimate economic gain for Australia and the removal
of irrelevant and out dated models of employment regulation.
Farmers broke the shackles of protectionism a long time ago
and embraced free trade principles. But this was predicated on
the fundamental concept that free trade and deregulation would
only occur if our regulatory environment did not hamper that
process. Employment regulation has not been a component of regulatory
reform and as a consequence precludes us from the potential success
of real and meaningful productivity improvements.
NFF seeks real and fundamental reform that actually reflects
the capacity for flexibility at the workplace, unfettered by
outside forces that take the attitude that neither the employers
nor employees can speak for themselves or can be trusted, that
they don't know what's good for them---others know best---as
with the case of contemptuous teenagers---mum knows best.
A large component of the workplace reform debate raging at
present is focused on what system would be our ideal. As proponents
of change, while not wishing to lose focus on pursuing our objectives,
we also need to be cognisant of highlighting the realities of
why we seek change.
We see in the media the big profile strikes and disputes but
does that necessarily resonate with Australians as a justification
for major change? Does the majority of the population understand
the complexity and frustrations and the negative impact employment
regulations have on the economy. Do they comprehend the intrinsic
and intrusive nature of the role of the Commission on a day-to-day
basis in the employment relationship?
NFF, therefore, not only seeks to highlight a reform agenda
but also outline the need for across the board implementation.
The best stories that touch an accord with those not aware of
the system is the role of the IR club.
A few examples, including our more recent forays in the National
Wage Cases exemplify why we seek change that brings the idealism
of reform into stark reality.
There is a general sense of astonishment that the AIRC can
actually instruct from the very outset how the employment relationship
is structured and how that relationship is to be developed along
the way without the knowledge of the employer, employee, or an
understanding of their workplace.
The NFF believes that the AIRC has taken such an excessive
pre-emptive approach to resolving disputes that it controls the
relationship from the outset. As a consequence, this paternalistic
approach is not conducive to developing an employment relationship
that should be simple and based on trust, mutual respect and
maximisation of productivity at the workplace to the financial
benefit of the employer and the employee.
In our view, there is a fundamental problem with the concept
that the Commission can accept there is an industrial dispute
in existence even when there is no employment relationship existing
at the workplace or a dispute is acknowledged by the Commission
at the request of the union even though the union has no linkage
to the workplace. Yet these examples are common in our system.
A typical example is found in roping in cases.
It is quiet extraordinary that the AIRC can impose an employment
regime on employers though the guise of an industrial dispute
that is commenced by a union even though there is no request
by the employees to create such a dispute. In reality, usually
there is no dispute in existence except a paper dispute within
the confines of a hearing room in Melbourne. The system enables
unions to represent employees without the employee seeking representation
and without the need for the union to prove representation. An
oxymoron if there ever was one.
One of our biggest frustrations is the centralisation of the
system. The introduction of enterprise bargaining was supposed
to decentralise the system. Well, let's face it---that's a fallacy.
There has, instead been a significant shift to the centre in
recent years that is evidenced by the annual Safety Net Review
cases that provided wage increases to all classification levels
beyond the federal minimum wage and the centralising instrument
itself, the Statement of Principles, that provide for the other
pinnacle of the key frustration of the centralised system---the
dreaded test case.
This centralisation obliterates industry relevance and the
true meaning of enterprise bargaining.
The inherent problems associated with a centralised system
is exemplified through the Safety Net Review case in terms of
the incapacity of business to pay increases to award wages.
NFF has pursued industry wide incapacity to pay cases over
a period of 20 years with virtually no success. In the most recent
attempt, instead of seeking an industry wide deferment of wage
increases due to drought conditions, we took a different tact.
NFF sought an automatic right for a deferment of the wage
increases for those farmers receiving exceptional circumstance
relief payment from the Federal Government.
Alarmingly that automatic delay wasn't even accepted.
Instead farmers were granted the right to apply to defer the
wage case if they provided evidence that they were in receipt
of exceptional circumstance relief payments (a welfare benefit
payment that requires significant evidence to be provided to
centrelink). But in addition, the farmers also had to provide
3 years worth of financial records. And, the union had the right
to oppose the application and pursue the financial records regardless
of whether the union represented anyone working on the farm.
We were very frustrated with this outcome, what else do you
need to do to prove incapacity?
NFF encouraged farmers to test the process, even if it simply
provided an example to reinforce the argument that the process
is unfair, unwieldy and complex.
Surprise, surprise, the union ignored the procedures outlined
by the Commission and took a friendly visit to the farmers without
our knowledge, with not a union member on site and as a consequence,
we argue they entered illegally. The farmers, already stressed
due to the drought, got fed up, decided to throw in the towel
including the decision not to pursue an illegal entry dispute.
Hence here we had a system that was apparently designed to 'help'
farmers for incapacity yet it only added another level of compliance.
This creates a scenario that means incapacity principle is
still an impenetrable fortress.
NFF used this example recently to highlight the inadequacy
of incapacity to pay claims for the purposes of the payment of
redundancy. Despite supplying to a Senate Inquiry, significant
evidence, we were accused of exaggeration, not supplying evidence
to support our accusations of union misbehaviour, taking cheap
shots at unions and treating unions as scapegoats. While disagreeing
with these sentiments, we took the venom of attack as a compliment,
obviously we hit a raw nerve. The upshot is that the IR club
consistently bury their head in the sand as to realities of what
employers and employees really want.
The rhetoric of the IR club generally is such that they may
sympathise with your cause or even pay lip service with the occasional
attempt to assist in removing small parts of the multitudes of
barriers in the system, but the ultimate outcome is still a long
way off in resolving the problems.
The Australian industrial system can be described in the following
It's unreasonable to suggest that an employer meet a promise
to pay a certain amount to an employee when the Commission has
made the promise on behalf of the employers without the employer's
or approval, without consultation, without consideration of the
employer's particular circumstances and without knowing whether
or not the employer's employees have actually achieved the task
to a satisfactory level. Further, the forced employment relationship
may have been developed in the context that the employee has
been represented by a union before the Commission without the
employer's knowledge let alone consent to determine how much
the employee is to be paid, what type of work they are to undertake
and for how long they will work. In addition, the employer may
also be represented by an employer group without their knowledge
let alone consent.
NFF seeks a far more simple scenario of an employer and employee
agreeing that a job will be done and at an agreed price. If they
want anyone else in helping them with that agreement process
then it is up to them to invite a third party into that relationship.
The Reform Agenda needs to provide simple outcomes but we
also need to sell that agenda with simple messages as to why
the system needs such a massive overhaul.