'We used to run this country,
wouldn't be a bad thing if we did again'
Here we are, in 2007, facing possible big changes to our system
of Industrial Relations. I like to think of Industrial Relations
as the ongoing argument between Unions and Management about who
knows what is best for working people.
Never before in my memory, has there been such a focus on
Industrial Relations in this country. Over the last six months
the general community and the media have begun to explore the
fundamentals of the rules of our employment systems.
As we sit on the cusp of a Federal Election, Industrial Relations
stands as the big issue.
It is the one area where there is a huge difference between
Howard needs to keep Union income as small as possible and
starve his opposition of funds.
Rudd needs to increase Union income and maximize his income.
Distinctive Features of Labor's IR Policy as Stated by
1. National System;
2. Collective Agreement making and democracy is
at the core of the National System;
3. No AWAs;
4. Safety net for all workers;
5. Independent Umpire that is a 'one stop shop';
6. Protection for Workers from Unfair Dismissal.
Labor Promises a National System
Labor says all private sector business is to be under the
National System, ending the confusion about sole traders, partnerships.
However, State Governments can choose to keep all public sector
workers and local govt employees under the State Systems.
So, it is really not a National System at all.
We will still have the problem that our Health and Education
workforces will be under the State Governments, treated differently
to similar workers in the private sector.
Labor vows to abolish AWAs
Much has been said about this issue. I will only briefly touch
on it as they have already been the subject of, in my view, too
What I will say, is that it appears when Business wishes to
do something different with their employees, they move them onto
AWAs when probably, a collective agreement directly with the
staff is more appropriate and would be easier to achieve.
Labor says that AWAs will be replaced by common law contracts;
that is like saying cars will be replaced by skateboards.
Unions hate AWAs for one reason and one reason only; simply,
they are too much work. It is impossible to negotiate for or
give advice to workers about documents on an individual basis.
There is no way a union membership fee can cover the true commercial
value of this advice and assistance. Quite simply, if all workers
in the country were on AWAs then unions would have to turn into
law firms and adopt the same charge out rates.
In my view, in most cases, a collective agreement directly
with the staff is easier to achieve than AWAs and serves the
employers purposes much better.
However, implementation of a collective agreement directly
with the staff requires skills related to the organizing of labour,
persuasiveness and political acumen, a resource not usually available
to most employers.
Labor Promises a Safety net for all workers
Labor intends to ensure all Australian Employees are covered
by 10 minimum legislated conditions plus another ten Industry
specific conditions in Awards.
It is clear from the policy that there is an intent to make
it easy for Unions create new Awards, after all, there is a clear
stated desire to create new union collective agreements in unregulated
industries, so why not new awards?
I would imagine that the new regulating body, FWA will identify
industries with lower paid workers that have no awards and will
divvy up these between unions to claim. Once Award coverage is
in place, containing one of the minimum standards of consultation
and representation, compulsory collective agreements with unions
Labor Promises an Independent Umpire that is a 'one stop
Their system brings the bureaucracy of govt even closer to
business. They will be located just around the corner and can
pop in to business as they choose. They will have right of entry
powers to do so and business will be required to cooperate.
Labor vows Protection for Workers from Unfair Dismissal
The policy prescribes a move away from any formal procedures
or protocol in one sense but in the other sense the public servant
that hears the matter has absolute power.
The entire matter of the dismissal will be heard at one conference,
which can be held at any location, at any agreed venue. During
the conference, the public servant can ask questions of the parties,
but no formal submissions can be made and cross examination cannot
occur, the employer and the employee must simply put their views
and answer questions.
No formal hearing will be held because the agent hearing the
matter must decide during the conference whether the dismissal
was unfair. Additionally at the conclusion of the conference,
orders must be issued. The decision will be made on the spot.
Should the finding be that the dismissal was unfair; an order
for re instatement will be issued, unless it is not in the interests
of the business, in which compensation will be ordered.
Labor wants unfair dismissals to apply after 12 months of
employment. This theory is based on the assumption that employees
are robots with output that can be assessed in the first 12 months
and that won't vary after that.
It is my experience that many employees have performance issues
in the later stages of employment.
Labor's policy strays from the Liberal party fundamental that
a small business owner can choose who they want working for them.
Labor intends to bring back the old double dipping scenario
for employees; a system where employers are punished twice for
the same matter.
In the instance where a dismissal could be unlawful, after
the matter is heard through a FWA conference, regardless of the
finding, the matter will be referred to the Unlawful Dismissal
section of FWA and heard again. In this scenario, it is possible
that the employer is ordered to reinstate through one forum and
then fined in the other.
All of this constitutes a very big stick to wave at business.
We will definitely have a return to the days where employers
felt that it was too difficult to remove employees from their
Labor delivers for the Unions; Collective Agreement making
and democracy is at the core of the National System;
This part of Labors policy is Kevin Rudd's payback for his
elevation to the position of leader.
This part of the Labors policy is the most significant part;
for the community and for Unions.
For the community, it reintroduces the Union Official as a
regular part of life at a place of work. It will introduce the
role of Unions into new industries, into small business that
have never had to previously worry about unions.
For Unions, it will restore their financial health and relevance.
For Unions, it means that they are through legislation, woven
back into the fabric of every workplace.
Unions are low on asset and cash reserves and have declining
incomes. There is a need to take urgent action to ensure their
Income for unions' results from membership fees paid by employees
employed in businesses around Australia.
Rudd must help the union movement survive; he simply has to.
The ALP receives a fixed percentage of the yearly fees of every
single union member of every affiliated union (most of them are).
The more union members there are in Australia, the more money
the ALP receives.
Every year, by a certain date all unions must report to the
ALP their precise number of financial members and they must also
enclose a cheque that reflects that number. In return, depending
on the size of the figure on the cheque, the ALP allocates the
union a number of seats on ALP conference floor. The bigger the
cheque, the more seats are granted. The most prized possession
of any union secretary is the number of seats they hold on ALP
conference floor. Each seat has one vote allocated to it. A vote
on ALP conference floor equals power. How else do you think Secretaries
end up in safe seats? It is multiple payback for all the factional
deals they have done along the way.
Once a union wins the legal right to force a business to 'bargain
in good faith' with them, they are home and hosed. They cannot
lose. Fair Work Australia will have the power to make orders
to ensure that employers negotiate in good faith with unions
and will have the power to 'end industrial action and determine
a settlement between the parties..'. This means that all a union
will have to do to raise a lucrative income stream from a business
is to ensure that they demonstrate support for collective bargaining
in the workplace, either through 'evidence of union membership,
petitions or a secret ballot of employees.'
Fair Work Australia, will 'have discretion' to 'determine
the level of support for collective bargaining amongst employees
in a workplace'.
This means that if a union can prove that more than 50% of
employees are members, the business owner will be forced to bargain
in good faith with the union for a collective agreement.
Similarly, if more than 50% of employees sign a union organized
petition, the business owner will be forced to bargain in good
faith with the union for a collective agreement.
Finally, if more than 50% of employees who elect to cast a
vote in a secret ballot vote the union in, the business owner
will be forced to bargain in good faith with the union for a
collective agreement. Unless Labor is planning to introduce compulsory
voting, this means that even if only a small number of employees
bother to vote, the business owner will be forced to bargain
in good faith with the union for a collective agreement
Should the union have difficulty reaching an agreement with
the employer, all they will have to do is send a letter to Fair
Work Australia advising that they intend to take industrial action
and Fair Work Australia will step in and determine a settlement,
thereby forcing the employer into an agreement. This is compulsory
This part of the Labor's policy contains the most shocking
slap in the face for business owners, it reveals Labors view
that a workplace consists only of employees. According to Labor,
employers don't form part of the workplace.
The 'democracy in the workplace' only applies to employees.
The employer does not get a vote or a say in whether they want
to be locked into a relationship with a Union.
Labor's policy means that employers will be forced into collective
agreements with Unions. Even small business, those in industries
such as child care, cleaning and community services will be locked
into collective multi employer agreements with unions.
Additionally, even if the employer is making an agreement
directly with the staff, the Union, if requested by one employee,
will have the right to be a signatory and be bound by the agreement.
The employer will also have to negotiate and hold discussions
with the Union. In other words, they are going to be involved
anyway, so you might as well just make the agreement with them
in the first place.
So why is this part of the policy crafted like this? Because
Unions know that he who controls the labor has the power and
the ability to use that power to extract income from the use
of that labor.
This is the American Model of organized labor, the light on
the hill the ACTU has been working towards for 20 years.
Collective agreements set out wages and conditions of employees,
but also prescribe conditions and processes that weave the Union
into the workplace, making the Union Official a permanent partner
the business owner can never be rid of.
Typically in collective agreements, grievance procedure clauses
mandate the involvement of the Union Official in everyday matters
of concern to employees. Consultation clauses require business
owners to discuss matters regarding change to business practices
with the Union prior to making those changes. Introduction of
new technology clauses prevent business owners from implementing
new technology without consultation and agreement of the Union
Official. Dispute clauses ensure that if a business owner tries
to ignore the rights of the Union Official to have involvement
in business decisions the Union can have the regulatory body,
Fair Work Australia, issue orders that the employer comply. Training
clauses mean that money from agreements is put into union training
funds that the union controls.
For small business in industries that are not unionised, the
most significant part of Labors document reads; 'Fair Work Australia
may also facilitate multi employer collective bargaining for
low paid employees or employees who have not historically had
access to the benefits of collective bargaining, such as employees
in the community services sector, cleaning and child care industries.'
These employees have not had access to collective bargains
because not enough of them are union members and therefore unions
cannot afford to negotiate for them.
There is only one reason that unions would bother engaging
in the effort required to strike multi employer collective bargains
for these workers; that is to collect some form of revenue. Despite
Julia Gillard's denials that bargaining fees will be outlawed,
Labor's policy has not been changed to reflect this. It is my
view bargaining fees will be part of the new way forward.
Labor's policy talks about bringing democracy back into the
workplace. Clearly their view of democracy is that if one party
really wants to be in the relationship, then the other party
should be compelled to be in the relationship too.
The issue here is; should the business owner get a say in
whether they want to be locked into a relationship with a union?
According to Work Choices, they do get a say and are able to
decline entering into an agreement with a Union whether there
employees want them to or not. Under Labor's proposed plan, the
employer gets no say at all.
Protected Industrial Action
On this matter, Labor pretends to be tough, they talk a lot
about when it is outlawed, but don't talk about when and how
it is allowed.
The devil is in the detail and the application.
In my view, Labor will revert to a more flexible definition
and approach to Industrial Action.
Unions will be required to be less specific about what they
are doing and when, which makes it difficult for the employees.
By far the most powerful form of action is work bans.
Work bans can cripple a business, and you don't need people
to go on strike. The beauty of work bans for unions is that members
are more likely to comply as they will still be paid wages.
Work bans can be used by Unions to simply cut off income to
a business; for example, a ban on handling money or collecting
revenue, a ban on sending out invoices to customers, a ban on
filling out the required forms so that a business can be paid
by their clients.
Labor and the Construction Industry
Labors promise to keep the Industry Regulating Body until
2010 is meaningless. They will not have anything much to do as
behavior that is defined as illegal now, will be legal under
At the moment, the unique nature of the way a construction
project is structured means that a builder making an agreement
with a Union to force the sub contractors on the project site
to pay their employees according to the agreement is illegal.
Labor defines an a construction project as a enterprise and therefore
it will be legal for the Builder to make an agreement with the
Union regarding the employment conditions of subcontractors staff.