WARNING:
This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 6 June 1996
The full text of the Workplace
Relations and Other Legislation Amendment Act 1996 is available
at http://scaleplus.law.gov.au/html/comact/9/4707/top.htm
CONTENTS
Date Introduced: 23 May 1996
House: House of Representatives
Portfolio: Industrial Relations
Commencement: For the most part, the substantive
operational provisions of the Bill will come into effect on a date
or dates to be set by proclamation. If those provisions are not
proclaimed within 6 months, they will automatically commence 6
months after the date of Royal Assent.
The legislation aims to implement the Government's industrial
relations election manifesto, Better Pay for Better Work
(BPBW), significant elements of the Coalition policy being:
- retitle the existing Act and amend the objects provisions to
reflect a new framework placing greater emphasis on workplace
relations
|
- revamp Union structures with the 'conveniently belong'
requirement to be abolished and unions to compete for
representation rights in individual workplaces
|
- simplify the award system and restrict the matters over which
the Australian Industrial Relations Commission (AIRC) has
jurisdiction
|
- the AIRC no longer to be permitted to award union preference
and compulsory unionism to be outlawed
|
- gradually remove paid rate (actual rate) awards consistent with
awards setting minimum community standards not total
conditions
|
- union right of entry to premises to be further restricted
|
- provide for Australian Workplace Agreements (AWAs), a non union
stream of enterprise agreements
|
- disamalgamation of unions to be facilitated, thus opening the
way for the break up of super unions created during the Accord
era
|
- create statutory office of Employee Advocate
|
- there will be no right to strike during the period of operation
of CAs and AWAs
|
- Certified Agreements process to be simplified with scope for
access to non-union CAs
|
- secondary boycotts covered by the Trade Practices Act will
extend beyond cases of conduct which have an anti-competitive
effect
|
- current 'no disadvantage test' to be replaced by same set of
minimum entitlements as apply to AWAs
|
- unfair dismissal laws will be amended to limit the reach of
Commonwealth laws to workers traditionally covered by federal
awards
|
- no pre-agreement testing of AWA by AIRC or union involvement
unless requested by workers covered by agreement
|
- the AIRC's power to set national standards for minimum wages
and equal pay for work of equal value will be removed
|
- the Trade Union Training Authority to be abolished
|
- the Federal Court will not be able to review unfair contracts
entered into by independent contractors
|
- current Enterprise Flexibility Agreements (EFAs) to be
translated into new system but EFA provisions to be repealed
|
- the Industrial Relations Court of Australia will cease to
operate and jurisdiction for industrial matters is to be returned
to the Federal Court of Australia
|
The Coalition does not appear to have acted yet on its
commitment to prevent monies collected on a tax deductible basis
from being channelled in whole or in part through a union or
employer organisation to political parties (BPBW:13).
Plans for a complete overhaul of provisions regulating the
financial and reporting requirements of registered bodies (unions
and employer associations) have been deferred pending an
independent inquiry.
Australian industrial law is divided into seven distinct
jurisdictions - more if stand alone legislation governing public
sector employment is tallied separately.
Each of the States has its own system of industrial laws. Until
relatively recently, federal law was said to cover the federal
award workers, Commonwealth employees and persons working in the
Territories. Following changes that came into effect in March 1994,
it also must be recognised that federal laws currently set minimum
employment conditions in respect of defined matters (such as unfair
dismissal and parental leave) for the majority of employees.
The Australian Workplace Relations Bill 1996 (the Bill)
represents the fourth major set of proposed changes to
federal industrial law since 1987.(1)
The Bill is a lengthy and complex document which ranges across
the full gamut of industrial issues. To assist the reader,
commentary on the relevant provisions is included in the Main
Provisions section of this Digest.
The Government's election manifesto is largely replicated in the
Bill(2) which is very much the product of the Coalition's
post-Fraser era thinking on industrial relations. There is little
in the Bill which should take observers by surprise and,
accordingly, the Government can feel relatively comfortable in
arguing its mandate to press ahead with the changes it has
planned.(3) On the other hand, the breadth of the changes involves
significant departures from the traditional arbitral model which
has been supported by both sides of politics in Government for the
better part of this century. What is proposed also leaves ample
scope for disagreement over both the general policy direction and
matters of detail.
The broad themes in legislation are:
- greater emphasis on individual, as opposed to collective,
rights (eg an end to union preference, provision for individual
contracts as part the Australian Workplace Agreements
bargaining)
- a narrowing of the federal jurisdiction, principally by
confining reliance on international treaties and the external
affairs power as a source of domestic law (eg in re-casting
Commonwealth unfair dismissal laws)
- a re-orientation of the role of trade unions - describing this
in contractual terms, converting trade unions in many instances
from parties principal to mere bargaining agents (eg by restricting
union access and representation rights to instances where they have
members at work sites and those members endorse union
involvement)
- deliberately lowering the 'centre of gravity' of day to day
industrial relations (by further circumscribing the arbitral
jurisdiction of the AIRC and making enterprise bargaining more
attractive to non unionised workplaces)
- seeking a more market driven approach (eg hastening the
simplification of existing award provisions and phasing out paid
rate awards)
- providing for greater competition and diversity in relation to
union representation rights (eg removing 'conveniently belong'
requirements from the Act and assisting the creation of new unions
including autonomous enterprise branches of existing federal
bodies)
- greater emphasis on formal legal sanctions as a means of
securing preferred workplace outcomes and minimising strikes and
other forms of industrial action (eg 'revival' of the so called
secondary boycott provisions of the Trade Practices Act).
(i) Economic and
institutional factors
Whether or not the Government secures the passage of its
package, it is already plain that Australian industrial relations
will undergo further significant change during the life of the
present Government.
The Accord between the ACTU and the former Government which saw
national wage increases effectively capped by a consensual wages
policy ended on 2 March 1996 and is unlikely to be revived.
Throughout the past decade there have been important changes in
demand for labour arising from, among other things, new
technologies, micro economic reform and the internationalisation of
product markets. These in turn have had an enormous impact on the
occupational and industrial composition of employment.(4)
From 1980 to 1995 employment in the manufacturing sector fell
from 19.7% to 13.6% of total employment. Between 1984 and 1994
casual employment rose from 15.8% to 23.7% of total employment and
part-time employment over the same period rose from 17.8% to 24.3%
of total employment.
Effective rates of protection to manufacturing industries also
continued to decline. This ended the 'protection all round' era
that had coincided with much of the period of centralised wage
fixation commencing with the Harvester decision in 1907
which introduced the concept of the basic wage. Between 1975-6 and
1990-91 effective rates of assistance to manufacturing fell from
28% to 15%. Present policies have the rate set to reach 5% by
2000-01.(5)
Whilst employment growth has at times been strong by both
Australian and world standards, unemployment has remained high
throughout the past two decades with a tendency for the rate to
increase by one or two percentage points at comparable points in
each successive business cycle. In March 1978 unemployment in
seasonally adjusted terms was 6.4%, in March 1983 it was 10.0%, in
March 1990 it was down to 6.2% but by March 1993 it was back to
10.9% and currently stands at 8.9%. Long term unemployment (persons
unemployed for a year or more) as a proportion of total
unemployment has risen, but not steadily, from the low teens in the
mid 1970s to a peak of close to 35% in 1994-95 There, however, has
been a heartening decline since then.
At the same time as unemployment has been rising there has been
an increase in hours worked by full-time workers, much of it in the
form of unpaid overtime. In 1985, 15.2% of workers were working
more than 49 hours per week but by 1995 this figure had risen to
20% of employees.
As in many OECD countries, labour productivity growth in the
business sector has slowed since the 1970s: Australian labour
productivity growth fell from 3.0 % per annum in 1961-73 to 1.3 %
per annum over 1980-92.(6)
With the introduction of the Accord, nominal wages growth
moderated from the wages surge of 1981-82 which had seen average
weekly earnings rise at annualised rates approaching 25% per
annum.(7) In 1987-88 average weekly ordinary time earnings for
full-time adult employees was 6.1% higher than the previous year.
In 1994-95 the comparable figure was 4.1%.
Taking earnings amongst full-time non managerial (male staff) as
a guide, income distribution became less egalitarian between 1975
and 1995, with the lowest paid 10 percent of workers earning 76% of
median earnings in 1975 but only 72.5% in 1985 and 65.4% by 1994.
In the corresponding period, the top decile of male full-time
non-managerial staff earnings share rose from 141.2% of median
earnings in 1975 to 154.1% in 1985 and 168.1% in 1994.(8)
In line with (or perhaps marginally better than) comparable
overseas experience, rates of recorded industrial disputation fell
during the 1980s. In 1980-81, the average number of working days
lost per thousand employees was 725. In 1986-87, the average was
235 days and for 1994-1995 the figure was 78 days per thousand
employees.
Trade union membership has declined from around 46% of the total
workforce in 1986 to less than 38% at present. Union membership in
the private sector has declined from 34.5% in 1986 to under 28% of
the workforce. Further declines can be expected as unionisation
rates in many businesses fall below critical mass, traditional
areas of high union membership experience slower than average rates
of employment growth and public sector employment (traditionally an
area of high union membership) continues to fall in absolute
terms.
Capping a seven year period of incremental change, the role of
the federal industrial tribunal, the Australian Industrial
Relations Commission (AIRC/Commission) has altered significantly.
Reflecting 1993 legislation amending the objects clause of the
present Act and the abandonment of national wage cases as they had
operated for many years, the existing legislative framework limits
the Commission to principally a facilitative role, ie. settling
individual disputes (principally by conciliation) and processing
workplace agreements struck between the industrial parties. It
would be bold to say that the 'umpire' is merely a shadow of its
former self but equally inaccurate to argue that it still plays the
pre-eminent part in wage fixing that it once did. Although it has
retained significant 'reserve powers', the combination of the
Accord, a decline in industrial disputation, a lessening of wage
pressures resulting in the reduced prospect of a wages breakout,
legislative change and a shift in industrial culture has made the
AIRC of less day-to-day relevance to the typical Australian
workplace.
Recent years have seen the spread of formalised systems of
enterprise bargaining. (Informal arrangements in relation to over
award conditions have always been a widespread and significant
feature of the Australian labour market and a considerable source
of labour market flexibility.) By September 1995, there were 9,367
enterprise agreements across all jurisdictions. By far the largest
number - 5,130- were in the Federal jurisdiction, covering 58 per
cent of eligible workers. NSW was next - 1,570 agreements, covering
29 per cent of workers.
| Jurisdiction |
Number of agreements* |
% of employees in jurisdiction covered** |
| Federal |
5130 |
58 |
| NSW |
1570 |
29 |
| Victoria |
457 |
n.a |
| Queensland |
667 |
30 |
| South Australia |
255 |
20 |
| Western Australia |
583 |
15 |
| Tasmania |
705 |
5 |
Source: ACIRRT, Agreements Database and Monitor, No.7, December
1995. Figures represent the proportion of workers in each
jurisdiction who are eligible to be covered by awards.
* These are collective union and non union agreements only.
** This figure represents the proportion of employees covered by
agreements who are eligible to be covered by awards in each
jurisdiction.
A further (though more problematic) re-orientation of workplace
relations has arisen from a change in the nature of Australian
trade unionism during the period of the Accord. Not only was there
a drop in union members, there was also a general decline in the
number of trade unions.
The number of federally registered unions fell from 150 in 1983
to 51 in 1995. It is at least arguable that the decline in the
number of unions, the more dominant role played by the ACTU during
the Accord years and the forced amalgamation of many smaller
unions, the passage in some jurisdictions of legislation inimical
to trade union influence, and the growth of informal and non union
enterprise level bargaining all contributed to a perception of
declining union influence. Perception may indeed have matched
reality. By the early 1990s, the focus of trade union affairs had
shifted further away from individual workplaces just as individual
workplace relations were becoming more important.
(ii)
Constitutional factors
Australian industrial law is complex and wordy. This partly
reflects the distribution of powers between the Commonwealth and
the States and varying interpretations of the scope of Commonwealth
powers over the years by the High Court.
Most of the past two decades, however, have been marked by a
coincidence of an expansive reading of a number of the
Commonwealth's constitutional powers by the Court and a more
adventurous Commonwealth approach to the use of those powers in the
industrial arena.
The industrial power itself [section 51(35)] has in recent years
been extended by the Court to apply to white collar workers, many
persons employed by State governments and matters affecting what
were once regarded as post employment relations such as termination
of employment and superannuation.
Starting with the Fraser Government's 1977 amendments to the
Trade Practices Act 1974 (the TP Act), extending
the operation of that law to cover so-called secondary boycotts,
Commonwealth governments have placed greater reliance on the
corporations power [section 51(20)] and to a lesser degree the
trade and commerce power [section 51(1)] to regulate aspects of
workplace relations.
The measures enacted under the Industrial Relations Reform
Act 1993 (the Reform Act) specified minimum entitlements for
employees in relation to termination of employment and parental
leave and conferred additional powers on the AIRC to set community
standards with regard to minimum pay and equal remuneration.
Those changes were advanced in reliance on the external affairs
power of the Commonwealth [section 51(29)]. The scope of the
'external affairs' power has been subject to considerable attention
and has formed the central issue in a number of High Court cases
over the past decade. [Refer Koowarta v Bjeke-Petersen
(1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR
1 ('The Tasmanian Dam Case'); Richardson v Forestry
Commission (1988) 164 CLR 261 ('the Lemonthyme Forests Case');
and Polyukhovich v The Commonwealth (1991) 65 ALJR
521.]
The gist of these cases is that the Commonwealth has
considerable scope for enacting domestic legislation on topics of
international concern.
Whilst the issue is not entirely free from doubt, it appears
that the existence of a genuine treaty giving rise to an obligation
will automatically amount to a matter of 'international concern' on
which the Commonwealth may legislate. The validity of domestic
legislation may, however, be called into question where the law
does not conform with the terms of the relevant treaty or where the
law relies on non obligatory terms in an international instrument
(ie some ILO 'Recommendations'). The 'favoured' test for
determining whether a law comes within the ambit of a particular
treaty is a liberal one. That test seems now to accord with the
judgment of Deane J in the Tasmanian Dam case where his
Honour observed: ' [t]he law must be capable of being reasonably
considered to be appropriate and adapted to achieving what is said
to impress it with the character of a law with respect to external
affairs . . . Implicit in the requirement . . . is a need for there
to be a reasonable proportionality between the designated purpose
or object and the means which the law embodies for achieving or
procuring it'(Commonwealth v Tasmania (1983) 158 CLR 1 at
260).
One example of such limitations on the use of the external
affairs power relates to Commonwealth laws relating to enterprise
bargaining. The International Labour Organisation Convention on
Collective Bargaining (Convention No.98), the only relevant
international instrument for such purposes, can support collective
agreements but not individual contracts. Hence it could not support
the 'individual contract' limb of the system of Australian
Workplace Agreements (AWAs) proposed under this Bill. Reliance
would still have to be placed on the Commonwealth's corporations
power (which itself is subject to certain limitations).
The use of the external affairs power in the industrial arena
has proved controversial and has been portrayed by some as
unprecedented, although such a course has been adverted to in the
past. Indeed, in R v Burgess; Ex parte Henry (1936) 55 CLR
608 at p 687 two High Court judges (Evatt and McTiernan JJ) were of
the view that " . . . it is not to be assumed that the legislative
power over 'external affairs' is to be limited to the execution of
treaties or conventions; and . . . the Parliament may well be
deemed competent to legislate for the carrying out of
'recommendations' as well as the 'draft international conventions'
resolved upon by the International Labour Organisation or of other
international recommendations or requests upon other subject
matters of concern to Australia as a member of the family of
nations."
An advantage from the Commonwealth's perspective is that the
external affairs power can be relied upon as the basis for
incorporating internationally agreed standards into domestic
Australian law in a way which is free of the limitations imposed on
the arbitral power. That power only extends to the prevention and
settlement of interstate disputes by way of conciliation and
arbitration. A further advantage, this time from the employee's
perspective, of relying on the external affairs power is that it
extends minimum standards to all workers not just those covered by
federal awards. From the employer perspective, the approach offers
the possibility of a single national law (rather than one
Commonwealth and six State laws) regulating each facet of their
activities. Such a unified approach, like a national corporations
law, clearly may lower compliance costs for firms operating in more
than one jurisdiction.
A number of the States, however, were most concerned by the
Keating Government's 1993 changes and three (Victoria, Western
Australia and South Australia) have mounted a joint challenge to
the Reform Act insofar as it relies on the external affairs and
corporations powers. That challenge was heard by a Full Bench of
the High Court in the first week of September 1995 and it is
conceivable that a decision could be handed down whilst the present
Bill is still before the Parliament.
The present Bill reflects some of those 'state's rights'
concerns and a more general Coalition unease about the use of the
external affairs power. Hence, proposed laws which provide remedies
for 'harsh, unjust or unreasonable' dismissals will rely on the
corporations, not the external affairs, power. There is not,
however, a wholesale retreat from the use of 'secondary' industrial
powers in the Bill. The external affairs power is relied on in
connection with termination for a prohibited reasons and in
instances where adequate notice of dismissal is not provided. The
corporations, trade and commerce, Territories and public sector
powers also underpin various provisions in the Bill. (It would, of
course, be somewhat inconvenient from the Commonwealth's
perspective if the High Court were to largely uphold the three
Coalition State Government's 1995 challenge to the use of the
external affairs and corporations powers, thereby invalidating
large parts of the existing Act and de-railing key elements in the
present Bill.)
The operational provisions of the Bill are divided into 21
Schedules. Given the length of the Bill, the number of disparate
proposals it contains, and the timeframe in which this
Digest must be produced, a clause by clause analysis of
the legislation is not possible. Instead, what follows is an issues
orientated discussion which attempts to place the provisions in
historical context. Possible technical problems with the
legislation are also identified as they arise.
The schedule provides for a new set of guiding principles in
relation to the operation and interpretation of the re-titled Act.
Greater emphasis is placed on maintaining individual rather than
collective rights and on promoting workplace level
negotiations.
It is not until item 3(h) that reference is made to the
traditional source of Commonwealth industrial power, section 51(35)
of the Constitution which provides for the Commonwealth to
establish arbitral machinery to prevent and settle interstate
industrial disputes.
Reference to ensuring the maintenance of labour standards to
meet Australia's international obligations is deleted from section
3 of the principal Act.
Reference to encouraging the formation of representational
organisations (of employers and employees) is also deleted from the
principal Act. There is also provision for organisations to be both
representative and accountable.
Reference is, however, now made in the principal objects to
'assisting employees to balance their work and family
responsibilities through the development of mutually beneficial
work practices with employers'.
Comment: There is always some temptation to discard 'objects
clauses' as no more than vague and high sounding statements of
principle. The fact remains that they do form part of the Act and
may be referred to in resolving cases of contextual ambiguity. On
the other hand, the lowly status given to the traditional
industrial power is unlikely to lead to the legislation being
invalidated on constitutional grounds. Nor for that matter, is the
failure to make reference in the objects clause to Australia's
international treaty obligations a basis for arguing that those
obligations are not being complied with under the new law.
The AIRC is presently arranged into two divisions, a General
Division and a Bargaining Division, the distinction being the
product of the 1993 Reform Act.
Under section 37, the Commission is also divided into industry
panels. Each panel comprises a number of AIRC members. Panel
membership is determined by the President of the AIRC as is the
allocation of industry responsibilities between panels.
The amendments dispense with the present obligation for the
President to establish industry panels and confines the President's
discretion in creating panels.
The proposals relate to new provisions designed to restrict the
AIRC's capacity to hear matters which might otherwise come within
the jurisdiction of a State tribunal (proposed section 111AAA).
Under the proposals, where the AIRC refuses a claim that the matter
before it would be more appropriately heard by a State Tribunal,
the President must consider whether the matter ought to be heard by
a member of the AIRC who holds a primary appointment with the
relevant State body. Similar rules apply to Full Bench matters.
Provision is also made to abolish the Bargaining Division -
refer Schedule 9.
Comment: The proposals appear unobjectionable. Consideration may
have been given to achieving a similar result by Ministerial
guidelines, thereby leaving the AIRC with greater discretion to
organise its own affairs whilst at the same time avoiding further
lengthening the principal Act.
The Awards Management (formerly inspectorate) function is
handled by a sub-program within the Department of Industrial
Relations. The awards management area currently has responsibility
for investigating alleged breaches of federal awards as maximising
community awareness of award obligations and entitlements as well
as compliance with award conditions. In 1994-95, the area received
in excess of 300 000 award inquiries and over 4000 complaints.
Nearly 6000 award breaches were detected involving breaches by 2110
employers.
The Schedule provides for the creation of the Employment
Advocate (EA) to be headed by a statutory office holder appointed
for a renewable term of five years. The EA is to be staffed from
within the Department of Industrial Relations (DIR) and it will
largely mirror the role currently played by the awards management
area of DIR but in this case, with respect to AWAs.
As noted at page 3 of the Explanatory Memorandum, the Government
has committed itself to the expenditure of $12million a year on the
EA. As also noted, there will be establishment and one-off costs in
the first year, and a gradual build up of activity with full year
effects in subsequent years.
The EA is to be an arm of government, not an industrial tribunal
for creating rights. Nor is it to be a judicial body which
determines or enforces rights. The EA will not vet AWAs prior to
their coming into effect.
The functions of the EA include:
- providing advice and assistance to both employers and employees
about their rights and obligations under the Act;
- providing advice to employers and employees in connection with
AWAs;
- receiving, filing and performing ancillary functions in
connection with AWAs;
- investigating alleged breaches of AWAs and other complaints
relating to AWAs;
- providing free legal advice (where warranted) in connection
with a court proceeding brought under the Act in connection with
AWAs.
Reporting requirements and conditions relating to the
appointment of the Employee Advocate are similar to other statutory
bodies.
Workplace inspectors appointed under these provisions will enjoy
similar powers to inspectors charged with investigating alleged
breaches of award conditions.
Remuneration of the Employee Advocate (EA) is to be determined
by the Remuneration Tribunal.
It will be an offence for persons employed by, or receiving
privileged information from, the EA to disclose that information
regarding the parties to AWAs to persons 'outside' the
agreement.
Proposed section 83BR allows State Parliaments
to confer powers on the EA and authorised officers. The Explanatory
Memorandum (page 14) states that this section is to allow State
laws to validly complement the provisions of the Act relating to
AWAs in their application as State laws.
Comment: One commentator has already observed that as (in his
view) there won't be many AWAs there will not be a lot for the EA
to do.(9) Whilst past performance in all jurisdictions shows a
limited demand for AWA style agreements, the comment ignores the
other roles assigned under the Bill to the EA and the capacity
given to the Minister to make regulations to extend the functions
of the Office without seeking prior parliamentary approval
[proposed subsection 83BB(j)].
The Bill also gives the Minister capacity to issue binding
directives to the Employment Advocate (proposed section
83BC); and to terminate the appointment of the EA by
executive action(10) (proposed section 83BO). The
Minister also retains significant discretion over the budget of the
EA by funding it from within DIR. Those concerned that the EA may
be overly involved with promoting the use of AWAs or assisting
employers in leaving other collective agreements rather than in
protecting employee rights [refer subsections 83BB(b) and
(c)] might prefer tighter controls over the EA. Making the
EA an 'Officer of the Parliament', ie., a form of workplace
ombudsman, might overcome such concerns.
The provisions seek to give the AIRC greater discretion in
dealing with demarcation disputes and reflect the policy of the
Coalition Government to allow greater competition between unions
for representation rights. The proposals here complement the
proposed abolition of the so called 'conveniently belong' rule
(present section 204), proposals to allow the formation of
enterprise (branch) unions, and provisions which will facilitate
union disamalgamation (refer schedule 15).
Current section 118 which requires the AIRC to consider whether
to consult with peak union bodies (usually the Australian Council
of Trade Unions) before settling demarcation disputes is to be
repealed.
The schedule substantially amends section 118A by making the
effect or likely effect of conduct engaged in or contemplated by
relevant unions the principal reason for granting a demarcation
order.
In awarding coverage, the AIRC is to be required to have regard
to a range of factors including the wishes of the employees in the
workplace affected by the dispute and the likely affect of the
AIRC's order on the efficiency and other operational aspects of the
relevant business.
The AIRC may no longer seek to resolve demarcation disputes
under this Part of the Act by altering the eligibility rules of one
or more of the unions involved in the membership dispute.
The AIRC, however, retains the power to prevent an organisation
altering its rules where that may give rise to a serious risk of a
harmful demarcation dispute which would restrict the performance of
work in an industry or harm the business of an employer
[proposed subsection
204(6B)].
The proposal seems to open up the possibility of an increase in
the number of unions represented in many workplaces. This goes
against the trend of the last ten years which has seen Government
encourage a move to fewer unions and the use of single bargaining
units.
Comment: The implications of these changes should not be
exaggerated. The AIRC still retains considerable discretion in
determining whether to exclude particular unions from particular
workplaces on a case by case basis. These and associated proposals
do, however, increase the likelihood of demarcation disputes whilst
(in theory) allowing individual workers greater freedom in
selecting their preferred bargaining agent. By creating the
conditions in which unions may feel the need to compete for members
by providing better services, the Coalition may be encouraging
unions to do something which is also in their own long term
interests.
(i) AIRC award
making
These amendments provide for a significant rewriting of the
machinery provisions dealing with the powers and functions of the
AIRC as presently set out in Part VI, VIA and VIB of the Act.
The changes build on a range of reforms designed to promote
wider use of enterprise bargaining, principally through the
mechanism of certified agreements, which were contained in the
former Government's 1993 Reform Act. For example, current
section 88A already provides that in exercising its award making
powers, the AIRC should encourage the prevention and settlement of
industrial disputes by the making of certified agreements.
Similarly, section 89 presently provides that the Commission should
as far as possible seek to resolve disputes by means of
conciliation rather than by arbitration. Current section 91 obliges
the AIRC to encourage parties to devise (their own) dispute
settling procedures and to include those agreed procedures in
awards.
Proposed section 88A refines the present
'objects' placing still greater emphasis on the making of
agreements at the workplace level rather than through third party
mediation. The section also confines awards to a 'safety net of
fair minimum wages and conditions of employment.'
Proposed section 89A defines the scope of the
AIRC's award jurisdiction to include the eighteen core employment
conditions referred to in proposed subsection
89A(2) (including: classification of employees; ordinary
time hours of work; rates of pay; piece rates, tallies and bonuses;
annual leave and leave loadings; long service leave; person/carer's
leave; parental leave; public holidays; allowances; overtime and
shift loadings; penalty rates; redundancy pay; notice of
termination; stand-down provisions; dispute settling procedures;
jury service; and type of employment but not quotas per employment
type).
Proposed subsection 89A(3) limits the AIRC to
making minimum rate awards, ie paid rate awards are to be abolished
as part of the award simplification process.
New section 95 seeks to limit the flow-on of
terms contained in certified agreements by providing that they may
not be included in an award if that is contrary to the public
interest or inconsistent with general wage-fixing principles
established by the AIRC.
Comment: In view of what might loosely be termed the 'hype'
concerning the de-regulationist flavour of the Act, the legislation
retains a significant and extensive list of employment conditions
within the award stream. Moreover, proposed subsection
89A(5) provides that the AIRC may include in an award
provisions that are incidental to the eighteen core,
award-susceptible, employment conditions referred to above. This
latter provision raises the spectre of many an argument before the
AIRC as to what constitutes an essential but incidental matter.
(ii) Award
simplification
It is common ground amongst many participants and most
commentators that notwithstanding the progress made in recent
years, award conditions are complex, frequently unclear, often
turgid and poorly drafted. Section 150A of the present Act which
was inserted by the previous Government recognises these
problems.
The present Bill proposes to tackle this problem in tandem with
confining, over a relatively short timeframe, all federal awards to
the basic employment matters referred to in section
89A.
Item 44 provides that at the end of an 18 month period each
award ceases to have effect to the extent that it provides for
matters other than allowable award matters.
Comment: There may be some doubt regarding the validity of this
provision where it operates, in effect, to override a decision or
award of the AIRC. The provision might be seen as going beyond the
scope of the Commonwealth's arbitral power under section 51 (35)
which provides for the settlement of interstate disputes by means
of conciliation and arbitration, not by government fiat or post hoc
legislative action.
(iii) Paid rate
awards
The schedule contains a range of amendments designed to remove
the AIRC's power to make paid rate awards - principally item
37.
Such awards, which set actual (as opposed to minimum) rates of
pay, are common in the public sector but relatively rare in private
industry although they have been made in respect of parts of
metals, mining and building industries. Paid rates awards commonly
are made by consent.
Paid rates awards have formed part of the responsibilities of
the AIRC's Bargaining Division which is also to be abolished.
The thinking behind the Coalition proposals is that the award
system should only protect a basic set on minimum conditions common
across all industries. It appears to be the Coalition view that the
maintenance of paid rate awards would advantage certain groups of
workers over others. The Coalition proposal is that, as part of the
award simplification process, all paid rate awards be converted
over time to minimum rate awards.
Comment: Naturally, this proposal has attracted opposition from
those covered by paid rate awards who fear that terms and
conditions currently guaranteed by the AIRC would be 'up for grabs'
as part of enterprise bargaining. A further and more general
concern is that it is not always clear what is and what is not a
paid rates award.(11) The proposals therefore have the potential to
give rise to disputes (which might not otherwise occur) over which
particular conditions ought to be regarded as minimum entitlements
under a particular award. It may be noted that as this process will
occur as part of the award simplification process it will take
place over an 18 month period (Items 41-46). However, as provided
under Item 43, the AIRC in incorporating conditions in a paid rate
award into a minimum award must structure the award so that overall
entitlements are not reduced.
(iv) Awards of the Coal
Industry Tribunal
Item 12 repeals section 92A of the present Act which provides
that in performing its functions in relation to the coal mining
industry, the AIRC must have regard to relevant decisions of the
(former) Coal Industry Tribunal. The provision was only inserted in
the Act in 1994 and did not commence operation until 1 July
1995.
Comment: There is no explanation in the Explanatory Memorandum
for this change in approach which is unlikely to find favour with
the coal industry unions.
(v)
Relationship of Federal and State Awards
By the operation of section 109 of the Commonwealth
Constitution, valid Commonwealth laws displace otherwise valid
State laws to the extent of any inconsistency between those
laws.
Section 152 of the present Act similarly provides that federal
awards and agreements prevail over State laws and the
determinations of State industrial authorities to the extent of any
inconsistency.
Item 35 of Schedule 5 provides that federal
awards no longer automatically override State employment
agreements. 'State employment agreements' are defined in Item 5 to
mean an agreement that regulates employment conditions of one or
more workers, is made between an employer and either an employee or
a union that is in force under a state law, and prevails over an
inconsistent State award. Hence State enterprise agreements and
voluntary employment agreements are no longer overridden by
subsequent Commonwealth awards.
Schedule 5 also amends section 128(1) of the
Act under which the AIRC may order a State tribunal not to deal
with a dispute. The amendment will prevent the AIRC taking such
action where the State tribunal is facilitating the making of a
'state employment agreement'.
Comment: The implications of this decision are potentially far
reaching. The changes may extend to allowing workers formerly
engaged under a federal award to enter into a State employment
agreement which does not guarantee the same minimum standards and
conditions as are required by the Commonwealth Act. Otherwise, the
provision may assist in allowing State systems to pick up workers
who may formerly have been award free by promoting the spread of
State common rule awards. The provision may also indirectly
facilitate the creation of enterprise (branch) unions.
(vi) Union Right of
Entry
Unions may enter an employer's premises to recruit members,
assist members in furthering their interests and to ensure that
employers have been meeting their legal obligations under awards
and industrial agreements.
Award rights of entry are made unenforceable by new
section 127AA. Schedule 15, Item 26
provides for a new statutory scheme of entry rights on the basis of
an invitation by an employee who is a member of the union.
The proposed legislation distinguishes between a right of entry
in relation to proposed award breaches and a right of entry for
general discussions (refer proposed sections 286 and
286A respectively).
Such an invitation must be in writing and can only be issued by
current union members.
In the case of general discussions, these are confined to
outside of working hours, meal times and other breaks. Generally
each invitation has a life of 28 days.
Union inspections to check compliance with awards, Commission
orders or certified agreement may take place at any time but
involve giving the employer 24 hours' notice. Union officers
proposing to enter premises must show proof of identity and an
authority from the union to do so.
Inspection rights do not extend to examining certain documents
including workplace agreements [proposed section
286(4)(b)].
Comments: The provisions provide a limited statutory right of
entry. The provisions clearly restrict entry onto premises where
unions have no members and may impede union recruitment,
particularly at new or 'greenfields' sites. The requirement that a
request be in writing opens the possibility of victimisation of
union members, especially on those sites where unionists are in a
minority. Requirements concerning authorisation and identity whilst
reasonable where used reasonably, are open to abuse, eg by
employers refusing entry to an officer who they know to be the
regular union representative but who has forgotten the relevant
paperwork. There is again an issue as to whether the Commonwealth
is exceeding its power in overriding existing award entitlements to
entry. (There is no constitutional limitation on the Commonwealth
preventing the AIRC making determinations on certain matters; it is
another thing to seek to extinguish a determination which is
already in effect.) There is also a policy argument for saying that
rights of entry should be for the parties to determine by
agreement, not for third party intervention by the State.
(vii) Refrain from
hearing - 'State industrial authority'
Under section 111(1)(g)(ii) of the present Act, the AIRC may
refrain from hearing a dispute where it is of the view that the
matter may be or is being more appropriately dealt with by a 'State
arbitrator'. The expression 'State arbitrator' does not extend to
bodies which cannot exercise powers of compulsory arbitration, eg
the Victorian Employee Relations Commission.
The amendment proposed by Item 18 effectively ends the so called
fast tracking mechanism for unions moving from a State to federal
jurisdiction where the State jurisdiction does not allow for
compulsory arbitration.
Proposed section 111AAA restricts the power of the AIRC to deal
with disputes concerning employees who are governed by a State
award. The AIRC must cease dealing with a dispute involving State
award employees unless it is satisfied that to do so would be
contrary to the public interest.
Comment: Proposed section 111AAA casts the onus on the AIRC to
demonstrate that it is in the public interest (not just in the
interest of the parties) that current State award employees ought
to be covered by a federal award. The main effect of section 111AAA
may be to insulate State Government employees from Commonwealth
awards.
Reflecting practice in other jurisdictions, in 1992 the Keating
Government amended the Act to deal with a limited range of unfair
contracts disputes. Originally jurisdiction was conferred on the
AIRC but this was transferred to the Industrial Relations Court by
the 1993 Reform Act.
The provisions allow the Court to review a contract for the
performance of work (other than work for private or domestic
purposes) by an independent contractor on the ground that it is
harsh or unfair. Under section 127B, the Court can set aside the
contract in whole or part or vary the contract.
Remedies can be pursued by independent contractor parties,
parties to the contract, or an organisation of employees
representing the contractor or an organisation or association of
employers.
There are constitutional limitations on access to the
provisions.
The relevant provisions - section 127A - 127C and subsections
178(9) and 179(3) are to be repealed by this Bill.
Comment: The Trade Practices Act 1974 provides relief
in respect of some forms of unconscionable contracts and
unconscionable conduct - see Part IVA of the TP Act. These
provisions will cover some but not all of the situations
contemplated by the unfair contracts provisions of the Industrial
Relations Act. The initial appeal of the unfair contracts
provisions of the IR Act was that remedies could be sought through
the AIRC rather than the courts.
A claim in relation to unfair dismissal generally involves an
employee arguing that the manner of the termination was unfair,
unjust or unreasonable. The process adopted by an employer in
relation to the termination is often an issue in these proceedings.
Proceedings may also involve an assessment of whether any reasons
which are given for a termination are properly based in fact and
justify the termination.
Another source of employer obligations relates to redundancy.
This generally involves a situation where a workplace is
re-structured and as a result a number of positions no longer
exist.
Before the enactment of the Commonwealth Industrial
Relations Reform Act 1993 (the Reform Act) many employees not
covered by State legislation had access to legal remedies in
relation to a termination of employment but these rights were
exercised comparatively rarely.
The avenues which existed for pursuing claims of unfair
dismissal before the commencement of the Reform Act
provisions on 30 March 1994 included:
- common law rights;
- anti-discrimination legislation;
- federal award rights; and
- the reinstatement and compensation jurisdictions of State
industrial tribunals and courts.
In addition, certain classes of employee might have had rights
under:
- apprenticeship and vocational training legislation;
- annual leave and long service leave legislation;
- parental leave legislation; and
- workers' compensation legislation.
Section 170HB of the federal Act seeks to preserve those
rights.
(i) Federal Award
Provisions
Employees who work under federal awards generally do not have
access to the State tribunals dealing with unfair dismissals.
Before the 1993 Reform Act took effect, many federal award
employees had access to the Australian Industrial Relations
Commission (AIRC) where the particular award contained a provision
prohibiting 'harsh, unjust or unreasonable' termination.
The widespread inclusion of award provisions concerning
termination followed two 1984 test case decisions of the Australian
Conciliation and Arbitration Commission (the forerunner of the
AIRC) known as the Termination, Change and Redundancy Cases.(12)
These cases were particularly significant in establishing a
standard clause in relation to termination of employment which has
been adopted in most federal, and many State awards. The standard
clause links the amount of notice to be given to an employee with
the employee's length of service with the employer and the
employee's age. The clause also provides that termination of
employment by an employer shall not be harsh, unjust or
unreasonable.
The remedies available from the AIRC if such an award term was
breached were limited because of Constitutional limitations on the
AIRC's power.(13) To be enforceable, a reinstatement order would
need to be seen as part of a settlement of a wider dispute
extending beyond the limits of a State. In the limited situations
where reinstatement was ordered, an order for lost wages could be
made. Compensation in lieu of reinstatement could not be ordered as
this was seen as a judicial matter that could only be dealt with by
a Court, not a Tribunal, at the federal level.
One way in which federal award employees did have access to
compensatory damages was through the Federal Court.(14) In 1988,
the Federal Court held that it could award damages to employees
dismissed in breach of award clauses prohibiting harsh, unjust or
unreasonable termination, as these terms were generally
incorporated into an employee's contract of employment.(15) This
avenue of redress was closed off, first by a Federal Court decision
in February 1994(16) and with apparent finality by the High Court
in 1995.(17)
(ii) New Commonwealth
Legislation
The 1993 Reform Act amended the Industrial
Relations Act 1988 (the principal Act) to include, amongst
other things, a remedy for a wide range of employees against
termination of employment which is harsh, unjust or unreasonable.
The provisions commenced operation on 30 March 1994.
The 1993 Reform Act represented a radical departure
from earlier Commonwealth industrial law because it extended
certain 'minimum entitlements' to all workers, not just federal
award employees, by way of legislative prescription rather than
award provision. The Government relied on the external affairs
power, rather than the conciliation and arbitration power which (as
noted above) has been the basis of federal industrial law since
1904, in introducing this wide ranging coverage. Matters relating
to termination of employment are seen as relevant to Australia's
external affairs since Australia has ratified an International
Labour Organisation Convention No. 158 on Termination of Employment
concerning this matter.
Section 170DE(1) of the Act provides that an employer must not
terminate an employee's employment unless there is a valid
reason:
- connected with the employee's capacity or conduct; or,
- based on the operational requirements of the undertaking,
establishment or service.
Under subsection 170DE(2) a reason is not taken to be valid if
(having regard to all the circumstances including the employee's
capacity and conduct and the firm's operational requirements) the
termination is harsh, unjust or unreasonable.
In addition, subsection 170DF lists a number of reasons for
which employment may not be terminated. The grounds include:
- temporary absence from work due to illness or injury;
- union membership or non-membership;
- acting as a representative of employees;
- filing a complaint against an employer;
- absence from work on maternity or other parental leave;
and
- a number of anti-discrimination grounds.
In relation to the anti-discrimination grounds, a dismissal will
not be unlawful if the reason for the dismissal relates to the
inherent requirements of the particular position, or the employment
is with a religious institution.
(iii) Amendments
and Restrictions on Access
Excluded employees
The remedies are generally available to employees. Under the
Industrial Relations Regulations however, there are some categories
of employee who will not have access to the provisions.
The 1994 amendments restricted access to the termination
provisions and set upper limits on the level of compensation to be
awarded.
From 30 June 1994, access to the Industrial Court's unfair
dismissal jurisdiction was limited to employees employed under
either federal or State awards and to those with an annual income
of (what was then) less than $60,000. This figure is indexed with
the current threshold being set at $62 200.
A second major amendment 'capped' the amount of compensation
payable to employees dismissed in contravention of the
Reform Act. (Under the principal Act, monetary
compensation is available where reinstatement is judged
impracticable.) Following the 1994 amendments, the Industrial
Relations Court could only award up to six months' salary as
compensation in the case of employees covered by awards and not
more than $30,000 or six months' remuneration (whichever is the
lower) for non award employees as compensation for unfair
dismissal. This figure is also indexed.
A third modification to the 1993 provisions confined the onus of
proof imposed on employers to those matters concerning the giving
of valid reasons for dismissal and for proving that none of the
legislatively prohibited grounds for dismissal formed the (real)
reason for the dismissal. In all other respects, the onus of proof
rested with the employee. This evidentiary requirement also
operates to discourage some workers from seeking remedial relief
under the system.
In November 1994, Regulation 30B made under the principal Act
was amended to exclude further classes of employee from protections
afforded by the principal Act.(18) Those excluded are:
- persons employed for a fixed term of less than six months;
- employees engaged to perform a specific task;
- probationary employees in specific circumstances;
- specific classes of trainees;
- some kinds of casual employees; and
- persons employed under the Australian Federal Police Act.
Adequate alternative remedies - Other remedies not
excluded
Two provisions in the 1993 Reform Act allow the
continued operation of State unfair dismissal regimes, to the
extent that such regimes provide 'adequate' remedies for
applicants.
Section 170HB provides that the Reform Act provisions
are not intended to limit any right that a person or trade union
might otherwise have to secure awards or orders relating to the
termination of employment.
Another threshold issue regarding jurisdiction arises by virtue
of section 170EB of the Act. Section 170EB provides that the
Industrial Relations Court of Australia (IRCA) must decline to
consider an application if it is satisfied that there is available
to the employee an 'adequate alternative remedy' in respect of the
termination, under 'existing machinery that satisfies the
requirements of the Termination of Employment Convention'. As
previously noted, this Convention is the main Constitutional basis
for the termination provisions of the Reform Act. The Termination
of Employment Convention was ratified by Australia in February
1993, and came into effect for Australia in February 1994.
The meaning of the expression 'adequate alternative remedy' has
given rise to much academic discussion, litigation and subsequent
legislative action.
Prior to March 1994, workers covered by federal awards did not
have an adequate remedy in terms of article 10 of Convention
No.158. Although federal awards typically prohibit unfair
dismissal, there was no mechanism whereby federal workers could
access article 10 remedies including compensation where
reinstatement is impracticable.
In relation to public sector employment, a Full Court of the
Industrial Relations Court has held that the review provisions
contained in the Public Service Act 1922 do not amount to
an adequate alternative remedy.(19)
A further area of difficulty is whether an alternative remedy
must be compared with the remedy available under the Commonwealth
Act or the Termination of Employment Convention or both, when
assessing the adequacy of the State remedy. The matter appeared to
have been settled by the Full Court of the Industrial Relations
Court in Liddell's case, where the majority of the Court
appears to have determined that an alternative remedy must be
assessed against the Convention, and additionally the federal Act,
where there is a difference between the two.(20)
The Industrial Relations and Other Legislation Amendment Act
1995 which came into effect on 15 January 1996 sought a
legislated solution to the above problem by providing that:
- the termination of employment provisions of the Act will not
apply where there is an alternative available under another law
that satisfies the requirements of the Convention that are relevant
to wrongful dismissal; and
- the Court will be required to consider all the circumstances of
the case in deciding what remedy (if any) should be given.
These provisions helped to clarify the law in relation to the
application of the 'alternative remedy test' but kept open the
generic, and politically more interesting, question of whether the
various State acts can be described as 'adequate' in terms of the
protection provided by the present Commonwealth law.
(iv) The Reith
proposals
In broad terms, the Bill endeavours to establish the familiar
'State' models for dealing with termination in the Commonwealth
arena. In doing so, the drafters have been obliged to couch the
Bill in terms which overcome the constitutional difficulties
referred to above. Indeed, apart from the limited scope for
remedies from the Court for unlawful (as opposed to harsh, unjust
or unreasonable) termination in Subdivision C, the new jurisdiction
is to give primacy to weighing industrial merits, not on enforcing
individual rights. As is presently the case in the Commonwealth and
most State jurisdictions, there will be provision to exclude
classes or worker from the legislation.(21)
The present proposals amend the federal law in at least five
vital respects:
- the amendments limit the availability of remedies for harsh,
unjust or unreasonable termination to employees in the
'traditional' federal sphere: Commonwealth employees, Territory
employees and workers covered by federal awards. The amendments
endeavour to ensure comprehensive coverage of all employees. Items
1 and 2 allow State Parliaments to confer certain powers on the
AIRC or on the Federal Court to deal with the unfair dismissal of
any federal award employee. (This provision seeks to overcome
certain constitutional limitations inherent in the decision not to
rely on the external affairs power as a continuing source of
federal power in relation to unfair dismissals);
- both the AIRC and the Federal Court are empowered to award
costs against applicants who pursue claims vexatiously or without
reasonable cause;
- mirroring the position in Victoria, it is intended that
regulations will be made to provide that each person seeking a
remedy will pay a filing fee of $50 (there is already power to do
this under the Act);
- where the Commission thinks that reinstatement is inappropriate
it may order the employer to make a payment to the employee in
lieu. This is the position under the present Act. However, under
new subsection 170CH(2) the awarding of any remedy
remains at the discretion of the AIRC taking into account the
entire circumstances of the case. Moreover, new subsection
170CH(7) provides, however, that in assessing the payment,
the Commission must also take into account the likely effect on the
employer's business of the payment; and
- by specifically incorporating reference to the 'fair go all
round' test enunciated by Sheldon J in Re Loty and Holloway v
Australian Workers' Union [1971] AR (NSW) 95, the authors of
the Bill have sought to inject what might be described as a further
element of 'common sense' into unfair dismissal proceedings. As
noted in the Explanatory Memorandum, ' . . procedural fairness is
to be only one factor to be considered along with other relevant
factors, the intention is that undue weight will not be given to
procedural defects in a termination.'(22)
The legislation may thus be viewed (again in broad terms) as
setting up two regimes, one for dealing with harsh, unjust and
unreasonable terminations via the AIRC , and a second for dealing
with breaches of mandatory notice periods (clause
170CM), terminations for prohibited reasons
[subclause 170CK(2)] and procedural matters
relating to handling of redundancies via the Court(s). Employees
seeking a remedy must choose between the two streams
(clause 170HB).(23)
Comment: In the time available to prepare this Digest, it has
not been possible to compare each and every element of the new
provisions with the legislation as it stood after the last set of
Keating Government amendments came into effect on 15 January 1996.
As Australia must continue to meet its obligations under ILO
Convention No.158, it is somewhat surprising, from a purely
technical perspective, that the legislation goes to such lengths to
maintain almost universal access to unfair dismissal laws through
the use of disparate constitutional powers and co-operative
legislative action by the States. On a rather quick reading, the
legislation appears more comprehensible than the much amended
provisions introduced by the 1993 Reform Act. This may
allay some lingering doubts about the unwelcome capacity of the
AIRC and some officers of an industrial court to interpret any
unfair dismissal law in a seemingly 'counter-intuitive' manner.
There will, however, no doubt still be the occasional odd finding
in respect of an apparently less than deserving employer or
employee, but there should be less jurisdictional wrangling than
under the old law.
This schedule proposes the repeal of those provisions in the Act
which empower the AIRC to set national minimum standards in
relation to pay, and anti-discrimination in the workplace, such as
equal remuneration and minimum wages.
The repeal of the present provisions is prompted by the view
that each of the Commonwealth and State jurisdictions has power to
make their own laws dealing with these matters and have adequate
laws governing those matters. Possible hostility to reliance on
international treaties and the extended use of the Commonwealth's
external affairs power [section 51(29)] and a desire to preserve
state rights in relation to minimum wages may also have prompted
the proposed amendments.
Comment: Whether the States will, if not subject to the possible
imposition of national minima by the AIRC, enact laws which meet
appropriate national and international standards is an open
question. In relation to the traditional Commonwealth arena, it may
be noted that other mooted changes to the Act (proposed
89A) will limit, albeit not severely, the capacity of the
AIRC to arbitrate in relation to some matters of remuneration which
may fall within the terms of the provisions which are repealed
under this schedule.
The proposed changes to the treatment of equal pay have drawn
early criticism.(24)
It is possible, for instance, that increased 'freedom' to
bargain will, given the present state of the labour market, result
in some (probably part-time) female workers with family
responsibilities being obliged to work longer and more unsociable
hours.
It is also arguable that the Bill will have a marginal negative
impact on women's relative remuneration. On the
other hand, women's wage rates
may remain unaffected in relative terms, ie ordinary time earnings
(basic wages) are likely to remain within the jurisdiction of the
AIRC whilst other matters will not.
Pessimistic predictions are supported by evidence that the
ordinary time earnings of Australian women workers have been less
subject to gender discrimination than those of their overseas
counterparts because of the combined influence of the unions and
the industrial tribunals. Where, however, remuneration is set
outside the award system, ie where the influence of unions and the
AIRC is less pronounced, there are larger disparities between male
and female earnings.(25)
Critics will argue that a lessening of union and Commission
influence on the setting of terms and conditions will produce
greater disparities.
On a more positive note, it also probable that family friendly
working arrangements will be developed under the more flexible
arrangements available under AWAs. (In this regard, it is perhaps
unfortunate that the secrecy provisions applying to AWAs may
inhibit the spread of such potentially innovative ideas.)
Bargaining
Arrangements
Since 1993 the focus of the federal system has been squarely on
the promotion of enterprise bargaining underpinned by minimum
safety net conditions common to all award workers. However,
although current emphasis is on greater flexibility and workplace
relations, this is a relatively recent development and contrary to
the approach favoured by policy-makers and the industrial parties
for most of this century.
Collective or workplace bargaining has always taken place in the
form of over-award agreements, informal arrangements, single
company awards and facilitative clauses in industry awards. On
balance, however, it is probably true, as Sir John Moore, a former
President of the then Australian Conciliation and Arbitration
Commission (ACAC) put it in 1983, that any collective bargaining
that does occur takes place 'in the shadow of the arbitration
system'.(26)
For much of the period from 1974, the focus of wages and
industrial relations policy has been on restraining the growth in
aggregate wages. Encouraging wage flexibility and productivity
growth were accorded a lesser priority in official circles until
the Commission's landmark 'two-tier' National Wage Case decisions
in March 1987. These priorities were understandable. Since the
Harvester decision in 1907, the Australian wages system has placed
considerable weight on producing predictable, socially defensible
and nominally 'egalitarian' outcomes. Departures from the 'living
wage' concept, such as those that occurred in the 1931 and 1953
cases, have been viewed with suspicion and generally regarded as
unwelcome. Moreover, the wage explosions of 1974-75 and 1981-82,
under conditions where the industrial tribunals had been largely
'sidelined', and the 'flow on' effects of 'work value' cases in the
1960s and the late 1970s, were not good advertisements for a less
centralised approach to wage-setting.
From the floating of the Australian dollar in December 1983, and
with the progressive de-regulation of product and financial markets
and the easing of import protection, pressure increased for what
has, somewhat erroneously, been called the 'de-regulation' of the
labour market.
The focus of much of this attention has been the central roles
in wage determination played by the AIRC and its predecessors and
by the trade unions. Australia's uneven economic performance
involving increasing rates of (what some economists refer to as)
'natural' unemployment and the decreasing share of the workforce
covered by the union movement have added to these pressures.
The response at the federal level has taken the form of: (a) a
progressive liberalisation of the legislative constraints which
formally inhibit the growth of enterprise and non-union bargaining;
and (b) an increased willingness on the part of the AIRC to
accommodate enterprise bargaining within its wage fixing
principles. (Evidence of the latter may be seen in the October 1991
National Wage Case decision.)
Amendments to the federal industrial relations legislation have
also embodied an incrementalist approach. Following the Hancock
Committee's recommendation that a form of opting out of the award
system be permitted, the Industrial Relations Act 1988
provided for the making of certified agreements under certain
limited conditions. The relevant provisions, contained in what were
sections 115-117 of the IR Act, however, proved too restrictive, in
part because the AIRC applied a strict public interest test to
applications for certification.(27)
With effect from July 1992, the legislation was amended by the
Industrial Relations Legislation Amendment Act 1992
replacing the existing procedures with a new Division regulating
the making of certified agreements. These agreements were commonly
referred to as section 134A (or, more correctly, Division 3A)
agreements.
The principal effect of the 1992 amendments was to lessen the
supervisory role of the Commission by restricting its capacity to
refuse certification of agreements. In particular, except in cases
involving Ministerial intervention, the AIRC was generally
precluded from examining 'single business' agreements or refusing
to register them on the ground that they were contrary to the
public interest.
In 1993, the Keating Government sought to place further emphasis
on enterprise bargaining by, amongst other things:
- altering the objects of the Act; and
- revising the certified agreements provisions of the Act to
enhance their attractiveness to the parties (by allowing the
agreements to be more readily varied on expiry, providing limited
immunity for persons and organisations undertaking industrial
action as part of the process of negotiating CAs; and extending the
scope for the operation of minimum entitlements such as minimum
pay, termination rights, equal pay and parental leave).
The spread of enterprise agreements was encouraged in the
Commonwealth public sector and the AIRC, after its October 1991
National Wage Case decision, moved to an approach which primarily
seeks to facilitate direct negotiation between the parties
underpinned by safety net increases awarded by the Commission.
The 1993 Reform Act also created a separate bargaining
stream for non union agreements known as Enterprise Flexibility
Agreements (EFAs).
EFAs have been described as a mirror image of CAs with three
major differences. Those are that:
- they depend on the use of the corporations power [section
51(20)] rather than on the principal industrial power [section
51(35)];
- an EFA can be made without the involvement of a trade union;
and
- EFAs may only operate in relation to single
enterprises.(28)
A fourth important difference is that, the provisions providing
for protected action do not extend to the period leading up to the
formation of an EFA.
The 1993 reforms came into effect in March 1994 and have been
the subject of frequent criticism. One line of criticism is that
the bargaining provisions as a whole are too complex.(29) Another
is that the provisions dealing with EFAs place too great a weight
on traditional arbitral forms and pre-occupations. The main
substantive criticisms are that the law as it stands:
- allows unions a right of veto (strictly speaking the
requirements are that unions be consulted about a possible EFA and
that they have a right to appear before the AIRC if they have
members at the site affected by the EFA);
- the AIRC has a role in 'pre-testing' the EFA and this
discourages the making of agreements because it involves parties in
unwanted bureaucracy and form filling and may potentially draw fire
from unions who oppose non union bargaining; and
- the AIRC applies a 'no disadvantage test' which parties
perceive as being too restrictive.
It is these perceptions and criticisms that the present Bill
seeks to address.
Comment: No one disputes that the present provisions are complex
and require redrafting. It is less clear, however, why there has
been such a low take up rate for EFAs and, to a lesser extent, CAs.
As noted in a previous Digest, this may reflect not only
constitutional constraints but also:
(a) the high transaction costs involved in enterprise
bargaining; (b) the lack of familiarity of many non union
workplaces with the bargaining process; (c) the complexity of the
existing legislative provisions; (d) a degree of satisfaction with
existing award-based arrangements; (e) some apprehension at
possible union displeasure with such arrangements; (f) the
widespread incidence of informal/unlawful enterprise flexibility
arrangements; (g) the incidence of individual agreements and the
award-free nature of growing areas of employment; and (h) existing
flexibility within the award stream and the availability of
State-based enterprise agreements.(30)
Some of the main features of the Bill are:
- CAs are presently restricted to agreements between employers
and unions whereas the proposal is for agreements between employers
and unions and employers and groups of employees;
- the scope of CAs will be expanded by reliance on other
constitutional provisions, so it will not be necessary to have an
inter-state dispute to attract jurisdiction; and
- majority employee approval is required even when the CA is with
a union (this compares with current provisions which only require
majority approval of EFAs where arrived at through agreement
between employers and unions.
The Bill contains detailed provisions dealing with the operation
and effect of Certified Agreements. A full listing is not provided
below but the main provisions are as follows.
Item 19 provides for the repeal and replacement of the existing
provisions on Certified Agreements.
Item 4 extends the operation of the Act in relation to single
business CAs by relying on the Commonwealth's corporations, trade
and commerce, and the Commonwealth's Territories powers.
Item 5 restricts the AIRC's general power to grant applications
to intervene in proceedings involving consideration of CAs to
unions which proposed being a party to the CA under
consideration.
Item 13 amends section 135 of the Act dealing with secret
ballots to explicitly provide for the conduct of AIRC ordered
ballots in regard to CAs.
In relation to CAs covering a single business or part of a
business, the AIRC is not required to take account of the public
interest (Item 19).
The AIRC may still register CAs in the form of multiple business
agreements but these are subject to a public interest test and not
encouraged (proposed section 170LC).
Proposed section 170LE provides for CAs to be
formed by agreement of a 'valid' majority of workers affected by
the agreement.
No Disadvantage Test and Other
Inhibitions on CAs and EFAs
Under the Bill, all agreements are subject to defined minimum
standards as set out in (new) Part VIE (see
Schedule 13). However, under
proposed section 170LT, the former Government's
'no disadvantage test' (NDT) is to be abolished. Moreover, under
proposed subsection 170LT(4), the AIRC may certify
an agreement which reduces award standards where the agreement
forms 'part of a reasonable strategy to deal with a short-term
crisis in, and to assist in the revival of', the relevant
business.
In addition, CAs may not include discriminatory terms (eg
relating to treatment of unionists and non unionists or
discrimination on any of the standard human rights grounds - race,
colour, sex, age etc)[ refer proposed subsection
170LU(4)]. CAs must also not be inconsistent with the
Act's provisions on termination of employment. The CA must also not
breach the 'freedom of association' principles embodied in the
Act.
The Act at present sets out a two stage process for determining
whether a Part VIB agreement would disadvantage employees in
relation to their terms of employment. First, the AIRC must
establish whether an agreement reduces entitlements or protections
under an award, or State or federal legislation. Secondly, where
any reduction is identified, the AIRC must then be satisfied that,
when considered in the context of the employees' total package of
conditions, the reductions are not contrary to the public
interest.(31)
The present NDT is essentially the same for both certified
agreements and EFAs but is far more likely to be rigorously applied
in relation to the latter.
Key requirements presently stipulated by the Act likely to
impede the process of certification, apart from a general lack of
clarity in the drafting of the agreement itself, are as
follows:
- the AIRC must refuse to certify or approve an agreement which
is inconsistent with a provision or order under Part VIA of the
Act, that is, the part of the Act dealing with certain minimum
entitlements of employees;
- it is mandatory for a union or unions to be party to certified
agreement [paragraph 170MC(1)(g]. Each and every union that is a
party to an award applying to the workplace must have been given
the opportunity to be a party to the agreement, and at least one
such union must be a party.(32)
- it is not mandatory for a union to be party to an EFA, however,
(1) the AIRC may refuse to approve an EFA where: the employer
failed to notify each relevant union about negotiations, as soon as
practicable after the start of discussions, and give them the
opportunity to take part in those discussions;(33) (2) section
170NP allows an eligible union, by written notice to the employer,
to agree to be bound by the agreement; (3) unions maintain their
normal rights to intervene in Commission proceedings and, where
they are party to a relevant award, have a general right to be
heard in relation to the proposed EFA;(34) and (4) an employee has
the right to be represented by their union in EFA
negotiations;(35)
- the AIRC may, in relation to all EFAs, exercise a limited
discretion, in exceptional circumstances;(36)
- the AIRC has discretion to refuse to approve a certified
agreement which applies only to part of a single business, which is
neither a geographically distinct part of the business or a
distinct operational or organisational unit within the business in
certain circumstances;(37)
- in the case of EFAs, the AIRC must refuse to register such an
agreement which applies to more than one enterprise or which does
not apply to all employees in that enterprise whose wages and terms
and conditions are regulated by federal awards;(38)
- the AIRC must refuse (subject to minimal statutory exceptions)
to certify an agreement which discriminates against an employee on
the grounds of 'race, colour, sex, sexual preference, age, physical
or mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or
social origin';(39)
- an agreement may only be certified where the employees affected
are covered by a federal or State award (certified agreements) or a
federal award (EFAs);(40)
- strikes, employer lock-outs and other forms of industrial
action enjoy a measure of protection during the statutory
bargaining period associated with the negotiation of a certified
agreement (but not EFA); (41)protecting individual employment
rights, section 334A of the Act presently provides that where an
interstate dispute has been notified or found to exist by the AIRC,
employees must not be dismissed or prejudiced in their employment
merely because they have engaged or are proposing to engage in
industrial action in relation to a particular dispute;
- the AIRC is specifically charged, in relation to both certified
agreements and EFAs, with the task of identifying and seeking to
protect the interests of women, persons whose first language is not
English and young persons who may be covered by the
agreement;(42)
- the Commission is empowered to make orders requiring the
parties to bargain in good faith (refer section 170QK);
- an employer may not discriminate between unionists and non
unionists in negotiating a certified agreement or EFA.(43)
The present NDT applies in addition to these statutory
controls.
New Provisions
Proposed section 170LI provides that each CA
must cover all persons employed in the single business.
Certified agreements may be made with one or more unions at a
particular site, and reasonable steps must be taken to ensure that
all employees affected are adequately consulted about the terms of
the agreement, and a valid majority of employees affected must
approve the agreement (proposed section
170LJ).
Employees can request a union to represent them in
negotiations.
There are special provisions for negotiations in respect of
'greenfields' sites (proposed section 170LL and proposed
subsection 170LT(8)).
CAs must include provisions for preventing and settling
disputes. They may also provide for the AIRC to play a role in any
such dispute resolution process (proposed sections 170LT
and 170LW).
Agreements are for a maximum period of 3 years [proposed
subsection 170LT(9)]. Agreements made for a shorter period
may be extended to cover a total period of 3 years
(proposed section 170MC) or varied by the parties
(see proposed section 170MD and new Division
7).
Proposed section 170MG deals with the
termination of agreements before their nominal expiry date. The
section appears to allow the employer to unilaterally terminate an
agreement to which a union is not a party. This, provision is,
however, subject to AIRC approval and approval is available only
where a valid majority of employees affected genuinely consent.
An agreement continues in effect after the nominal date of
expiry (proposed section 170LX) but may be
terminated unilaterally on the giving of 28 days notice after the
passing of the nominal expiry date by the employer, a union party
or a majority of affected employees (proposed section
170MH).
While a CA is in operation it prevails over federal awards
(proposed section 170LY) and over State laws and
industrial awards and employment agreements except in respect of
defined matters. Defined matters include State occupational health
and safety laws, worker's compensation laws, apprenticeship laws
and any other matter to be prescribed by regulation under the
proposed Act (proposed section 170LZ).
A union may only become party to a certified agreement where it
has at least one member covered by the agreement and that person
wants the union to be a party (proposed section
170M).
Schedule 9 also contains extensive provisions
regulating the protected bargaining period. These in large part
replicate the provisions under the existing Act. Two features worth
noting, however, are that:
- protection does not extend to secondary boycott activity
(proposed section 170MM); and
- as part of the transitional arrangements, CAs made under the
existing and proposed provisions will continue to prevail over
EFAs.
Comment: The scope of section 170MM is such that it may cover
instances where there is no intention to engage in
secondary boycott activity. Conduct that may be covered is where a
party believes they were taking protected action but it is
subsequently determined that they were not protected. The provision
also appears to make unlawful all forms of sympathy action. Current
ILO jurisprudence suggests that sympathy action should generally be
treated as lawful where the related primary action is lawful.
Enterprise Flexibility Agreements are replaced under the Bill by
Australian Workplace Agreements (AWAs).
These are transitional provisions allowing for the continuation
of existing EFAs until they are terminated by notice or displaced
by a binding AWA.
These are intended to be single enterprise agreements. AWAs may
be negotiated on a group basis but must be entered into on a one to
one basis by employers and employees [proposed section
170VF(1)]. AWAs are a form of individual contract.
In enacting these provisions the Commonwealth is relying on the
corporations and trade and commerce powers under the Constitution.
This is principally because the agreements do not necessarily rely
on the settlement of interstate industrial disputes by means of
conciliation and arbitration. AWAs may also be made by the
Commonwealth with its own employees.
The essence of the agreements is that they eschew third party
(union and AIRC) involvement.
Protection to employees is offered by way of the Employee
Advocate (see Schedule 3 discussed above) and statutory minimum
conditions outlined at proposed section 170XA of
the Act (refer Schedule 13).
Those statutory minima include (in brief):
- wages over a period no less than the wages that would have been
earned over the period under the award;
- no less than 4 weeks recreation leave with pay each year;
- no less than 12 days of personal/carer's leave with pay each
year if the employee is sick, is caring for a family or household
member or is absent because of death of such a member;
- no less than 52 weeks of parental leave or adoption leave
without pay after 12 months continuous service;
- long service leave on terms and conditions that are no less
than those that would otherwise apply;
- equal pay for work of equal value without discrimination on the
ground of sex; and
- payment for jury service no less than the difference between
the amount payable under the agreement for the period of absence
and any amount payable by the court.(44)
Certain procedural requirements must also be met in relation to
the formation of valid agreement.
To make AWAs easier to conclude, agreements which fail to
provide for legislated requirements such as minimum conditions and
dispute resolution procedures are deemed to incorporate 'model'
provisions in relation to those matters (proposed section
170VG).
Two or more agreements may be reflected in the single AWA
document.
AWAs are for a maximum of 3 years and if no expiry date is
included in the agreement, the agreement is deemed to last for 3
years (proposed section 170VH).
Employers and employees may appoint bargaining agents to act on
their behalf. Unions may be bargaining agents. Each party must
'recognise' bargaining agents appointed by other parties
(proposed section 170VK) but is not obliged to
negotiate with them as such agreements are intended to be purely
voluntary.
The parties may jointly agree at any time to terminate an AWA.
After the nominal expiry date of an AWA any party may by notice of
28 days unilaterally terminate the AWA. Where there is a collective
AWA, there is the theoretical possibility that some agreements may
carry on whilst others may be terminated at different times
(proposed section 170VM).
Division 5 deals with the procedures for filing AWAs with the
Employee Advocate.
Proposed section 170VQ gives AWAs precedence
over federal awards and State awards and agreements that would
otherwise apply. However, AWAs do not displace state termination
award rights and do not override State laws dealing with health and
safety, worker's compensation, apprenticeship and other matters set
by regulation.
The relationship with federal Certified Agreements is more
complex. AWAs do not:
- displace certified agreements which have not reached their
nominal expiry date except where the CA specifically provides for
this possibility;
- prevail over certified agreements which come into effect after
an AWA has reached its nominal expiry date.
In all other cases an AWA operates to the exclusion of any CA
that might otherwise apply to the employee's terms of work.
Parties to an AWA may not engage in industrial action during the
life of the AWA with respect to a matter covered by the AWA
(proposed section 170VU).
Proposed Division 8 provides limited immunity for industrial
action by employers and employees engaged in for the purpose of
negotiating an AWA.
Proposed section 170WF provides that persons
who are not party to negotiations must not hinder others seeking to
conclude an AWA.
This schedule is comprised mainly of technical amendments
arising from the chances dealt with above. Within the timeframe in
which this Digest has been produced it has not been
possible to consider whether these proposed amendments have
unintended or unstated consequences.
Items 33 and 34 provide for increased penalties for breaches of
CAs.
Proposed section 358A imposes an obligation on
the Minister to secure triennial reports on the operation of the
Act's bargaining provisions. Such reports must be tabled in
Parliament within 15 days of receipt by the Minister.
As previously noted, the statutory minima referred to in this
schedule apply to both CAs and AWAs and replace the 'no
disadvantage test' (NDT).
The terms of the NDT are discussed above under Schedule
9 and an outline of the minimum conditions is presented in
this Digest as part of the commentary on Schedule
11 (AWAs).
For AWAs, complaints regarding non-compliance may initially be
directed to the Employee Advocate. For CAs, the AIRC will continue
to check agreements to see that they comply with statutory
minium.
Where an employer proposes to make an AWA with a person and
there is no relevant award in relation to that person, the employer
must apply to the Employee Advocate in writing for guidance as to
which award standard should be applied. The EA will then make a
determination for the purposes of establishing an appropriate
minimum for the purposes of the AWA (proposed section
170XC).
There are special provisions relating to the determination of
minimum conditions for casuals, pieceworkers, and (by regulation)
for persons participating in Labour Market Programs.
Division 4 deals with the minimum entitlements
of employees undertaking an approved traineeship or
apprenticeship.
The Division does not apply to persons engaged under:
(a) a National Training Wage traineeship; or
(b) a Career Start traineeship; or
(c) an Australian Traineeship System traineeship.
In regard to the minimum entitlements of trainees covered by
proposed section 170XW, the minimum entitlement is
reduced proportionately for time spent in structured training and
not in productive work for the employer. The proportionate
reduction is, however, to be determined by an independent
'approving authority', not by the employer.
The main proposals are for:
- the repeal of the bans clause procedure and its replacement
with a directions mechanism under new section
127;
- a tightening of restrictions on the granting of so called
'strike pay' involving the repeal of existing section 124 and
amendments to the definitions section of the Act and the inclusion
of proposed sections 187AA - 187AD; and
- the repeal of sections 165, 166, 166A and 167 of the Act which
relate to actions at common law.
(i) Strike
Pay
It was once common, particularly in the building industry, for
workers to engage in strike action and then insist as part of the
subsequent dispute settlement that they be paid their normal wages
for the time spent on strike.
Section 124 presently prevents the AIRC dealing with a claim for
strike pay except in cases where the stop work was brought about by
a dispute over occupational health and safety, arose over matters
which were reasonably the responsibility of the employer and the
action taken by the employees was itself reasonable.
What is now proposed is that 'industrial action' as defined
under the Act should not cover stoppages or bans relating to some
disputes concerning occupational health and safety. Action based on
a reasonable apprehension by employees about an imminent risk to
their health or safety will not be unlawful if the employees do not
refuse a reasonable direction from their employer to perform other
available, safe and appropriate work.
Simultaneously, further amendments will:
- make it unlawful for employers to make payments to striking
workers in respect of a period of industrial action;
- make it unlawful for unions and their members to claim strike
pay;
- make it unlawful for an employee to accept strike pay;
- allow persons, including the Minister, to seek orders against
persons paying or claiming strike pay; and
- allow the court to impose penalties of up to $ 10 000 on any
person breaching the new provisions.
Comment: The author is somewhat surprised that strike pay is
still regarded as so serious and widespread a problem as to justify
the present amendments. The proposed provisions nonetheless may
provide some welcome clarification as to the rights of employers to
direct employees in a health and safety dispute to undertake
alternative work. The level of penalty under proposed
section 187AD has not been set according to the legal
personality of the person alleged to have committed an offence, ie
the maximum penalty is the same for individuals as for unions and
businesses.
(ii) Restraints on
Common Law Action
The 1993 Reform Act provided a very limited level of
immunity for unions, union officials and employees in respect of
common actions for damages and against precipitate applications for
injunctive relief.
Apart from the changes to the law dealing with so-called
secondary boycotts, the most important of these provisions
associated with limiting legal action against strikes were
contained in section 166A. This provision delays the commencement
of common law proceedings for a maximum of 72
hours pending the AIRC attempting to resolve the underlying dispute
by means of conciliation.
The protection presently given by section 166A does not extend
to conduct resulting in personal injury or damage to property or
conduct arising out of demarcation disputes.
The main effect of the proposed change is not to make strikes
unlawful at common law, they are already unlawful under the present
law. The principal effect is to allow employers to seek common law
injunctions without first attempting to resolve the matter in
dispute through the conciliation and arbitration machinery.
Comment: The proposed changes will probably draw criticism as
the provisions appear to breach international obligations such as
ILO Convention No.87.
The proposed amendments may bring about a significant change in
the nature of trade unionism but could also reverse the present
trend which has seen a significant decline in the number of
federally registered unions in the past decade (see
Background).
The main changes proposed are as follows:
- the repeal of the so called 'conveniently belong' rule which
imposes restrictions on the registration of new unions where its
potential members come within the eligibility rules of an
organisation already registered under the Act;
- new provisions facilitating the registration of new
unions:
- Item 6 provides that the minimum requirement for registration
is reduced from 100 to 20 members;
- new Division 6A will provide for the creation
of enterprise branch unions by a ballot of the affected
members;
- removing the requirement that a registered body must be
capable of being a party to an interstate dispute (Item 4);
- provisions facilitating disamalgamation (new Division
7A); and
- increasing the statutory threshold in respect of the
application of more onerous financial accounting and reporting
requirements from $10,000 to $20,000 (amendment to section
285).
Item 18 amends subparagraph 264(2)(b)(i) to reduce the maximum
period of notice that may be required for resignation from a union
from 3 months to 2 weeks.
Item 23 strengthens the power of the Industrial Registrar to
investigate the financial accounting and reporting by registered
bodies.
Comment: There is some prospect that the changes will give rise
to increased levels of inter and intra union disputation. Battles
over union property, generally associated with attempts of branches
to break away or act independently, frequently produce expensive
and, for the union, debilitating legal proceedings. On the other
hand, the changes may encourage unions to improve services to
existing members and act as a spur to the recruitment of workers
not presently covered.
The schedule meets the Coalition's election commitment to end
union preference and compulsory unionism.
'Union preference' and 'compulsory unionism' are forms of union
security device but they do not, as is often popularly assumed,
have the same effect or the same meaning. One reason for this
confusion is that in some instances, and depending on the nature of
the union preference applying, compulsory unionism and union
preference can produce the same result.
For present purposes it is necessary to distinguish between the
two concepts.
Compulsory unionism refers to what is sometimes called 'the
closed shop'. It takes pre-entry and post entry forms but, in
essence, means that a worker who is not a member of the relevant
union represented at their place (or potential place) of
employment, will not get (or keep) a job. This is sometimes
referred to as 'no ticket, no start'. Compulsory unionism is a
strong form of union security device.
The federal industrial jurisdiction has never recognised
compulsory unionism and there is High Court authority to the effect
that the AIRC cannot make awards of compulsory unionism because it
is not an industrial matter (ie it does not pertain to the
relations of employers and employees). Compulsory unionism exists
in federal industries, but as informal arrangements between unions,
employees and employers.
'Union preference' may take a number of forms but is most common
at the federal level as qualified preference. An employer must give
preference to a union member in instances where two applicants for
a job are equal in all other respects, ie they cannot be separated
on merit. Preference in this form is a weak form of security
device, principally because it is relatively easy for employers to
find reasons for selecting the non unionists.
The federal industrial tribunal has for many years had the power
to award union preference (refer section 122) and this has to some
degree been balanced by provisions in the Act providing for
conscientious objection to union membership and protection against
victimisation plus an enforceable right to union membership for
workers who wish to join. The AIRC and its predecessors have also
been reluctant to make awards of preference in particular
industries and callings, eg the Commonwealth Public Service.
Arguments for allowing forms of union preference have been:
- preference seeks to encourage union membership thereby
promoting more representative organisations, particularly in the
context of formal registration under systems of conciliation and
arbitration;
- preference recognises the role played by unions in securing
benefits for all workers covered by awards and agreements, which
generally do not discriminate between non union and union
members;
- preference is a useful device for settling demarcation disputes
and disputes over union representation rights generally.
Those opposed to preference see it as:
- an attack on individual rights;
- an outmoded concept given declining union numbers; and
- irrelevant in the context of de-regulated labour markets (an
argument which will gain further force with the proposed abolition
of 'conveniently belong' rules which presently give unions
'monopoly' representation rights for workers coming within their
eligibility rules).
The proposed amendments take away the AIRC's power to award
preference and seek to render inoperative existing preference
clauses (see Item 4 and proposed sections 94 and
298Y). Relying on a range of constitutional powers, the
amendments seek to outlaw all forms of union security device
including compulsory unionism. General provisions are to be enacted
with the intention of providing comprehensive protection for
employers, employees and independent contractors from any form of
discrimination based on their employment status, membership or
non-membership of industrial organisations, and their conduct in
relation to organised industrial action.
As a consequence of the proposed amendments, the current federal
regime for providing protection for those with recognised ethical
objections to union membership is also to be repealed.
Proposed section 298B defines 'industrial
association' so as to include non-registered bodies, ie unions
outside the formal federal system of conciliation and arbitration
will be caught by the law including State registered bodies.
Proposed subsection 298B(2) deems conduct of
union members in regard to matters covered by the schedule to be
have been done by the union unless the union has taken reasonable
steps to prevent that action. This provision also applies to other
industrial associations as defined.
The schedule specifically provides for the concurrent operation
of laws of the States and Territories dealing with discrimination
in employment (proposed section 298J).
Proposed section 298L lists prohibited grounds
of discrimination. These appear to include all existing
prohibitions.
Proposed section 298V shifts the burden of
proof from persons making a complaint alleging discrimination to
those seeking to defend themselves against such a complaint.
Complainants must, however, allege a reason for the prohibited
conduct.
Proposed section 298U provides for a range of
penalties and remedies in relation to breaches of the
provisions. The federal court may impose a maximum
penalty of $ 2000 on individuals and up to $ 10 000 in the case of
corporate entities.
Comment: The impact of union preference has declined
considerably in the federal jurisdiction in recent times both due
to the fall in union numbers and on account of an amendment made to
the Act in 1993 which effectively prohibited preference operating
in relation to termination of employment (section 170DF). Some
concerns may be raised as to the combined effect of deeming and
reverse onus of proof provisions in the same scheme. The Bill
preserves the concurrent operation of State law which prohibits
compulsory unionism and preference (proposed sections 298J
and 298W). At the same time it overrides State laws which
may permit forms of union security device where the employer is a
corporation (refer proposed sections 298F and
298G).
The Industrial Relations Court (IRCA) will be abolished but not
until after the last judge of the Court ceases to hold office. In
the interim, the work of IRCA is to be transferred to the Federal
Court.
The proposal to abolish the IRCA, had it been handled
differently, had the potential to raise constitutional issues and
concerns as to judicial tenure and the separation of powers
doctrine. As it is, it appears that the only matters which may
require some clarification relate to the future treatment of
persons currently employed by IRCA and the retention of some of the
'user-friendly' practices developed by the Court.
(i)
History
Professor James Crawford has summarised the history of what is
now IRCA in the following terms:
The federal arbitration system was established soon after
federation, in 1904. The Commonwealth Court of Conciliation and
Arbitration, the principal organ, was presided over by a High Court
Judge until the 1920s, and thereafter by judges specifically
appointed. But in the Boilermaker's case in 1956 [ R v Kirby Ex
parte Boilermakers' Society of Australia (1956) 94 CLR 254]
the High Court held that the Court could not exercise both the
'quasi-legislative function of making awards and the judicial
functions of interpreting and enforcing them. Two new bodies
resulted: to exercise the non-judicial power of conciliation and
arbitration, the Australian Industrial Relations Commission (before
1989 the Australian Conciliation and Arbitration Commission) and
for strictly judicial functions, the Industrial Division of the
Federal Court (which in 1977 replaced the Australian Industrial
Court).(45)
In 1987, the Hawke Government proposed sweeping changes to
Australia's industrial laws including the creation of a separate
Labour Court: the Industrial Relations Bill 1987 and the
Industrial Relations (Consequential Provisions) Bill 1987.
These Bills broadly reflected the recommendations of the
tri-partite Committee of Review into Australian Industrial
Relations Law and Systems under the Chairmanship of Professor
Keith Hancock (the Hancock Committee).
The most controversial aspect of the 1987 legislation was the so
called 'compliance package' which sought to codify a number of
common law and statutory restraints on industrial action, transfer
jurisdiction for sections 45D and 45E of the TPA from the Federal
Court to a (new) Labour Court, and establish a procedure under the
IR Act for securing dispute resolution and compliance with
Commission decisions and directions.
On 26 May 1987, Minister Willis announced that the Government
had decided to defer debate on the Bills until the 1987 Budget
Session. On the following day, Prime Minister Hawke, secured a
simultaneous election for the House of Representatives and the
Senate for 11 July 1987. The 1987 Bills lapsed with the issuing of
the writs for the double dissolution and, on 6 June 1987, the
Government announced that it considered it impractical to proceed
with the proposed compliance measures. On 28 April 1988, the Hawke
Government introduced a re-modelled set of proposals based on its
1987 Bills: the Industrial Relations Bill 1988 [Act No.86
of 1988] and the Industrial Relations (Consequential)
Provisions Bill 1988 [Act No. 87 of 1988] ('the 1988
Acts').
The 1988 Acts, which came into effect on 1 March 1989, did not
retain the 'compliance package' put forward as part of the 1987
Bills including the proposal to create a separate Labour Court.
Criticism of the Labour Court centred on provisions permitting
members of the proposed Court to hold concurrent commissions as
members of the Industrial Relations Commission. The 1993 reforms
did not persist with this proposal.
Nonetheless the present legislation has not escaped criticism.
In a Media Release issued on 25 October 1993, the Law Council of
Australia commented:
There are at least two major areas of concern. First, the
setting up of a new specialist court in the context of the
resolution of a political impasse between powerful forces in
society gives rise to the apprehension . . . that the court will
not be perceived as intended to administer impartial justice
independently and fearlessly according to the rule of law.
The Law Council is not aware of any problems or shortcomings in
the way in which our industrial laws are administered by the
Federal Court, which is, after all, the superior trial court in the
federal jurisdiction. That the Government should consider it
necessary in these circumstances to establish a new specialist
court makes one wonder whether a different kind of justice is there
to be dispensed according to special rules.
(ii) The IRCA
The IRCA was nonetheless created following the passage of the
Industrial Relations Reform Act 1993 which came into
effect on 30 March 1994.
The Court is a superior court of record and has equal status to
the Federal Court of Australia and the Family Court of
Australia..
Unlike the proposal for an Australian Labour Court contained in
the Industrial Relations Bill 1987, the legislation does not
provide for members of the IRCA also to be members of the federal
industrial tribunal, the Australian Industrial Relations Commission
(AIRC).
The IRCA comprises eleven judges including the Chief Justice,
the Honourable Murray Wilcox. All members of the Court hold
concurrent commissions as Judges of the Federal Court of Australia
and participate in its work. Five judges work principally on the
IRCA, six principally on the Federal Court.
In 1995-96, the IRCA employed the equivalent of 52 full time
staff. This was to increase to 86 during the present financial
year. Of these 16 are industrial registrars who are statutory
office holders. IRCA's running and associated costs for 1994-95
were just over $10 million. Provision to meet these costs was
increased to slightly under $12 million in the current financial
year (Attorney-General's Portfolio, Portfolio Budget Statements
1995-96: 108-109).
The IRCA's jurisdiction is somewhat similar to that of the body
it replaced, the Industrial Division of the Federal Court. It deals
with the interpretation and enforcement of awards, questions of law
referred to it by the AIRC or the Registrar, and enforcement
proceedings in relation to boycotts. It also has responsibility for
reviewing unfair contracts under sections 127A - 127C of the
Industrial Relations Act 1988 (the Act).
Unlike its predecessor, the IRCA has jurisdiction (on referral
of a matter by the High Court) in relation to challenges to the
jurisdiction of the AIRC. This has allowed the High Court to avoid
having to deal with, except in exceptional circumstances,
comparatively trivial matters and may result in greater efficiency
in dealing with industrial disputes by avoiding delays inherent in
requiring that all jurisdictional matters be dealt with by the High
Court. [It may be noted, that similar provisions could have been
enacted to widen the jurisdiction of the Industrial Division of the
Federal Court. This merely would have followed the practice in
relation to other matters coming within the High Court's
jurisdiction under section 75(v) of the Constitution - specifically
matters involving the review of actions of 'officers of the
Commonwealth,' by the courts).]
The IRCA's main work is in reviewing unlawful termination of
employment under the Act. Both the Commonwealth's and the IRCA's
own role in relation to these matters have expanded rapidly
following the passage of the 1993 Reform Act with
subsequent rulings by IRCA channelling most matters away from the
State systems.
With the primary workload in respect of termination already
transferred to the AIRC and the Coalition planning to abolish the
unfair contracts jurisdiction (see Schedule 6
above), there would appear to be less justification for the
continuation of a separate industrial court. (An ongoing
jurisdiction could include the enforcement of provisions of the Act
dealing with registered bodies, eg amalgamation, elections, rules
and membership.)
(iii)
Tenure
Judges of the IRCA have the same tenure as members of the High
Court of Australia, the Family Court and the Federal Court.
These rights derive from section 72 of the Constitution which
provides (in part) that:
The Justices of the High Court and of the other courts created
by the Parliament -
(i) Shall be appointed by the Governor-General in Council:
(ii) Shall not be removed except by the Governor-General in
Council, on an address from both Houses of the Parliament in the
same session, praying for such removal on the ground of proved
misbehaviour or incapacity:
(iii) Shall receive such remuneration as the Parliament may fix;
but the remuneration shall not be diminished during their
continuance in office.
The appointment of a Justice of the High Court shall be for a
term expiring upon his attaining the age of seventy years, and a
person shall not be appointed as a Justice of the High Court if he
has attained that age.
The appointment of a Justice of a court created by the
Parliament shall be for a term expiring upon his attaining the age
that is, at the time of appointment, the maximum age for Justices
of that court and a person shall not be appointed as a Justice of
such a court if he has attained the age that is for the time being
the maximum age for Justices of that court.
Thus Justices of the Industrial Relations Court do not enjoy
life tenure but, except for misbehaviour, continue in office till
turning 70 as section 72 now provides that the retiring age for
federal judges is age 70. This limitation on the tenure of federal
justices came about as a result of a constitutional amendment
carried in 1977.
The provisions of section 72 do not, however, apply to tribunals
or other 'court-like' bodies such as the Australian Industrial
Relations Commission and its predecessors.
Although the Constitution restricts the capacity of the
Parliament to remove judges from office, it does not restrict
Parliament's ability to abolish courts created by act of
Parliament. (The High Court is created by the Constitution and
therefore cannot be abolished without amending the
Constitution.)
By convention, however, the Commonwealth has not acted to
abolish courts created by the Parliament and where the federal
judicature has been subject to restructuring, all existing office
holders have been offered appointment to the new or restructured
court.
In 1956, the High Court ruled in the Boilermaker's case
that the Commonwealth Court of Conciliation and Arbitration was not
validly constituted as a court because its members performed both
judicial and non-judicial functions. The Commonwealth was obliged
to replace the Court with two new bodies, a Court and a Commission.
All members of the former court were appointed to either the new
Court or the new Commission at their existing level of seniority
and according to their qualifications and status. Indeed, the
Commonwealth Court of Conciliation and Arbitration was not finally
abolished until 1973 when the last member of that Court (Sir
Richard Kirby) retired.
When the Federal Court of Australia began work on 1 February
1977, it took over the responsibilities of the Federal Court of
Bankruptcy and the Australian Industrial Court. Neither of those
two courts was abolished until the remaining members of the
Bankruptcy and Industrial Courts had retired. However, contrary to
convention, and to the spirit of the 1977 constitutional amendment
abolishing life tenure, two judges aged over 70 but enjoying life
tenure from their previous appointments, were not offered
commissions on the new federal Court.
The High Court has not been asked as yet to decide on the issue
of whether a court created by the federal parliament can be
abolished.
Comment: The Coalition's plans for the Court are neither
surprising nor, as it transpires, particularly controversial. In
this regard, it may be noted that the Coalition consistently
opposed the creation of the IRCA. To quote the present
Attorney-General, the Member for Tangney, Daryl Williams QC (in
opposition):
The government has been completely silent in explaining the need
for the establishment of this new court. No rationale is provided
in either the second reading speech or the explanatory memorandum.
This silence is really quite extraordinary. (Parliamentary
Debates, 22 November 1993: 3293)
The need for such a court has been questioned by those outside
the political debate. To quote two eminent labour lawyers:
That said, it is not clear that the creation of IRCA will serve
any useful purpose. If the principal rationale for establishing a
separate court was that it could be comprised of persons with a
particular expertise in the industrial relations arena, then it is
hard to see that the new court enjoys any significant advantage
over the former Industrial Division. . . . It is tempting to
conclude, therefore that the creation of the court was largely a
matter of political expediency rather than legal or industrial
necessity. (Breen Creighton and Andrew Stewart, Labour Law: An
Introduction, 2nd edit, 1994: 88-89)
It would have been a matter for concern if the Government had
not maintained the status and entitlements of the present members
of the IRCA. However, Item 72 preserves the terms and conditions of
appointment of all Judges of the Court and Item 73 appoints all
Judicial Registrars of the IRCA as Registrars of the Federal Court
for the remainder of their terms. Item 78 provides that the Chief
Justice of the IRCA continues in office with responsibility for the
continued management of the Court.
The Coalition Industrial Relations Policy document, Better
Pay for Better Work (BPBW), states that:
Secondary boycotts will not be permitted and provisions based on
the former sections 45D and 45E of the Trade Practices Act will be
re-enacted.(46)
The amendments provided for under Schedule 18
meet the Government's election commitment but if enacted may place
Australia in breach of its international obligations in relation to
freedom to organise and the right to take collective industrial
action. In this regard, the main concern is not that sections 45D
and 45E ban secondary boycotts but that they appear to ban sympathy
action and also prohibit most primary boycotts (ie ordinary
strikes).
The provisions set out in Schedule 18 are, as
is the case with the present law and the law as it existed prior to
the 1993 Reform Act, extremely complex and the full
ramifications of what is proposed will require more detailed
consideration than can be engaged in here.
One source of complexity is that the terminology used in the
Bill and its predecessors is itself difficult.
As an indication of the difficulties associated with coming to
terms with the secondary boycott laws it will be remembered that in
the twelve months till October 1993, the Senate Standing Committee
on Employment Education and Training (the Senate Inquiry) devoted
considerable time and effort to former sections 45D and 45E without
reaching substantial agreement as to the worth of those
provisions.
(i)
Terminology
The complexity arises from a range of factors. First, the
concept of 'secondary boycott' is elusive. As observed in the
former Government's submission to the Senate Inquiry:
Sections 45D and 45E are frequently referred to as the
'secondary boycott' provisions of the TP Act. This, however, is a
misnomer and reflects a widespread misunderstanding of the scope of
the provisions and the conduct they seek to constrain.
The submission then went on to explain the distinction between
primary and secondary boycotts. An example will illustrate the
principal difference. One simple form of secondary boycott is where
two or more workers in dispute with their employer (A) ask workers
engaged by a business (B) which deals with employer (A) to restrict
the flow of goods or services between the two firms. Critics of
secondary action frequently refer to business (B) as the 'innocent
third party' thereby making a distinction between an ordinary
dispute between an employer and his/her workers where (prima facie)
either or both parties are to 'blame'. By definition, in a
secondary boycott, one party is being injured for the sole purpose
of 'getting at' another. In reality, of course, the facts are not
always so clear cut. The so called 'innocent' third party may not
be so innocent as for example where its business arrangements with
the target employer are directly impeding the target's workers from
securing a resolution to the matter in dispute.
A further source of confusion is the variety of relations
covered by the generic term 'secondary boycott'. There is also no
consistent usage of terminology dealing with such action and a host
of expressions such as 'secondary action', 'sympathy strike',
'solidarity action' are used interchangeably even though they might
describe quite different situations.
A most important instance is the distinction between 'sympathy
action' and 'secondary boycotts' both of which were rendered
unlawful by section 45D. Although treated similarly under the
TP Act prior to the Keating Government amendments, these
are distinct forms of industrial action under International Labour
Organisation jurisprudence. The distinction is that whilst the ILO
has 'never expressed a decided view on the use of secondary
boycotts' (ILO, 1989 Direct Request), it appears to believe that
sympathy action ought not be unlawful where the initial industrial
action in respect of which such sympathy action is taken is itself
lawful (ILO, 1991 Direct Request).
More importantly, however, secondary boycotts should not be
confused with ordinary strikes (where there is, in law, no innocent
third party). When a group of workers take direct action against
their own employer they may be said to be engaging in a primary
boycott.
(ii)
History
The following extracts from the former Government's Information
Paper for the Senate Standing Committee on Employment Education and
Training provide useful background on the history, use and
implications of boycott provisions.(47) (For the sake of brevity
relevant footnotes contained in the text have been either deleted
or incorporated in the relevant text.)
Sections 45D and 45E were inserted into the Trade Practices
1974 in 1977 and 1980 respectively. Whilst forming part of the
Commonwealth statute targeting anti-competitive conduct and
outlawing deceptive business practices, the sections have most
often been used to restrain industrial action by trade unions.
The sections are controversial and complex, forming part of a
mosaic of laws which render unlawful virtually all forms of
industrial action by trade unions and workers individually.
The sections have produced a steady, though fluctuating, stream
of litigation. Their constitutional validity has been challenged
and, substantially, upheld. [Ref. Seamen's Union of Australia v
Utah Development Co (1978) 144 CLR 120 and Actors and
Announcers' Equity Association of Australia v Fontana Films Pty
Ltd ("the Fontana Films Case") (1982) 150 CLR
169]
Actions taken under the boycott provisions of the TP Act have
been associated with some of the most widely reported industrial
confrontations of the past two decades. These include a 1980
dispute in New South Wales involving Leon Laidley Pty
Limited and some members of the Transport Workers' Union
('TWU') over job security and management rights concerning the sale
of discount petrol; a protracted dispute in the mid 1980s in the
Northern Territory over work practices at the Mudginberri
Abattoir; and, more recently, the use of contract labour
occasioned by the activities in Victoria of the labour hire firm,
Troubleshooters Available. Apart from attaining a degree
of notoriety, each dispute and subsequent legal proceedings have
reinforced conflicting views on the efficacy and significance of
the provisions.(48)
Such high profile industrial disputes and court actions, allied
with regular political debate at the Federal and the State level
over the use of sections 45D and 45E, have formed part of a larger
and long-running debate over the use of legal sanctions to restrain
strike activity and other forms of industrial action.
The controversy over sections 45D and 45E is perhaps
predictable, arising, to some extent, from the difficulty in
reconciling the principles of the right to strike with the
protection of third parties from deliberate harm in the course of
industrial disputes.
The use of the sections has been notable for several reasons
including the following:
- relatively few of the actions have proceeded to trial or led to
an award of damages;
- the sections may and have been used to limit most forms of
industrial action not just secondary boycotts;
- the sections have on occasion been employed outside the
industrial arena for the purpose of inhibiting the activities of
public interest groups and stifling political action;
- the matters dealt with in the sections have a different
character from the types of anti-competitive commercial conduct
proscribed by Part IV of the TP Act; and
- in practice, sections 45D and 45E have rarely been used to deal
with anti-competitive conduct and the overwhelming majority of
actions taken under the sections have been to stop strikes, pickets
or boycotts associated with industrial action.
There is also a question of whether the economic and industrial
significance of the sections and their actual application may have
been somewhat overblown. By any measure, the number of workers
involved has not been large, the total number of working days lost
(in the national context) minimal, and the direct effect on
national economic welfare, transitory. On the other hand, it is
clearly arguable that the full impact of the sections goes well
beyond the actual cases where they have been employed.(49)
Sections 45D and 45E have at times been seen as key points of
differentiation in approaches to industrial relations. They also
mark something of a watershed in the development of Australian
industrial law and practice. Some see the sections as making a
substantial contribution to a positive shift in Australian
workplace culture. Others see them as hindering improved industrial
relations and a continuation of an approach which seeks maintenance
of industrial harmony through resort to legal sanctions and state
intervention.
From 1977, when section 45D came into operation, up to and
including 1 July 1993, 206 court actions have been commenced
involving the use of both or either sections 45D and 45E.
Of these 206 cases:
- 40% of applicants obtained an interim injunction (80)
- 4% of applicants obtained a final injunction (8)
- 1% of applicants obtained an award of damages (3)
- 59% of applicants received no remedy (121)
- no application was made for a penalty under section 76 of the
TP Act.
Of the 206 actions, 18 cases have involved the use of 45E which
came into effect in 1980.
Of the 18 applications under section 45E:
- 8 also involved applications under 45D; and
- 13 were rejected or not proceeded with.
Of the 8 actions brought under both sections, in only 2 cases
was the section 45E based claim separately successful in obtaining
relief.
Of the 10 instances where section 45E was resorted to on its
own, only 1 case led to relief being granted by the Court.
It is evident . . . that there has been a slight, though marked,
decline in the number of actions brought under sections 45D and 45E
since the beginning of 1991. Of the 23 cases brought before the
Federal Court in that period:
- 25% of applicants attained an interim injunction
- 6% of applicants obtained a permanent injunction
- only one applicant obtained an award of damages
- no applications proceeded to the granting of a statutory
penalty under section 76 of the TP Act.
A small number of actions have also been recorded involving the
use of the sections against businesses, ie, actions in which unions
have not been the defendant.
What is also apparent is that unions have generally not sought
to make use of the authorisation mechanism provided for under
section 88 of the TP Act. Research done by staff of the Trade
Practices Commission revealed that no authorisations have been
granted. A search of the relevant journals etc shows that only one
application for a section 88 authorisation was made and that
application was rejected on public interest grounds.
There has been one case of a trade union seeking to bring an
action against another union in connection with a demarcation
dispute [Federated Ironworkers of Australia v BWIU (1989)
AILR 322].
Limited use also seems to have been made of the "lessening of
competition" limb of subsection 45D(1) which has not assumed great
significance both for practical and evidentiary reasons. It is
harder to prove a 'substantial lessening of competition' than
'substantial loss or damage' to an individual or limited number of
businesses. Moreover, there will be few cases (if any) where there
has been a substantial lessening of competition but no loss or
damage to a business. A somewhat cursory examination of actions
commenced since 1991 showed that, in actions brought against unions
under section 45D, the 'substantial damage to a business' limb was
in all cases either the exclusive, or substantive basis, for the
action brought. Subsection 45D(1)(a)(B) ('substantial lessening of
competition'), by contrast, was either not relied on at all or
apparently included in the statement of claim for the purpose of
covering all possible options.
A preliminary analysis was also undertaken of the number of
actions coming before the AIRC under Part VI Division 7 of the Act.
These actions come about as a result of applications made following
an approach to the Federal Court to restrict boycott activity
covered by sections 45D and 45E. A number of post 1989 cases
appearing to disclose parallel action in the Federal Court and the
AIRC were discovered. In most instances, however, it was shown that
action had already commenced in the AIRC before injunctive
relief was sought through the Federal Court. This suggests that the
secondary boycott handling procedures established under the two
relevant Acts are not always followed. This phenomena is
explicable, however, given the likelihood of one dispute giving
rise to both primary and secondary boycotts. The former finding
their way into the AIRC and the latter initially (at least) coming
before the Federal Court.(50)
Reporting in October 1993, the Senate Standing Committee Inquiry
into the operation of sections 45D and 45E divided along party
lines. The majority concluded, inter alia, that:
- the use of section 45D and 45E, as a response to industrial
action is unduly harsh, and in conflict with Australia's
obligations under ILO conventions on freedom of association;
- it is not appropriate to deal with the issue of the right to
withdraw labour within trade practices legislation;
- the fundamental principle of the right of a worker to withdraw
labour should be enshrined within industrial relations legislation,
and any qualifications attached thereto should be articulated
within the legislative framework;
- the legitimate rights of business to trade in goods and
services without interference should be properly secured by trade
practices legislation but that sections 45D and 45E, as they
currently stand, achieve this result at an unacceptable cost with
respect to the rights of citizens to take legitimate industrial,
protest and other social action;
- that while employers have used, or threatened the use of,
sections 45D and 45E to bring about cessation of industrial action,
these are not a satisfactory means of preventing and settling
disputes;
- that a mechanism must be available under industrial relations
legislation to provide for the speedy resolution of industrial
disputes where the primary issue is one of substantial damage to an
enterprise as opposed to substantial lessening of competition in
the market;
- where a dispute has been dealt with by industrial relations
mechanisms, and a speedy result has not been effected, a
certificate should be issued enabling the matter to be dealt with
in the civil jurisdiction; and
- section 45D constitutes an impediment to the exercise of
legitimate protest and other social action by citizens.
The minority, comprised of Senators Crane and Tierney, were of
the view that:
- the provisions are a useful device for preventing and settling
industrial conflict and are predominantly used by employers as a
'last resort';
- the provisions do not encourage a disregard for the processes
of arbitration;
- defences available under section 45D(3) of the TPA are adequate
to protect employee's rights;
- ILO Conventions should not be employed as a 'benchmark' for
Australian domestic law and practice;
- the availability of compulsory conciliation and arbitration
should make all strikes unnecessary;
- the high costs that can be imposed on business, even by
relatively short strikes, must be avoided;
- the Government had not accurately indicated the nature of the
relevant ILO Conventions;
- section 45D is no more expensive than other civil remedies and
is used by innocent employers the target of boycotts including
companies of all sizes; and
- boycott action must be restricted and employers provided with a
remedy which is quick, immediate and as effective as section
45D.
(iii) 1993 Reform Act
Notwithstanding the amendments sponsored by the Keating
Government by way of the Industrial Relations Reform Act
1993, secondary boycotts which have an anti-competitive effect
have remained unlawful at common law and subject to a range of
sanctions available under the TP Act. Thus unions engaging
in anti-competitive conduct are treated no differently to other
persons covered by the relevant law, ie section 45D.
The main changes made by the 1993 Reform Act to the
secondary boycott laws had the effect of:
- restricting legal remedies to genuine secondary boycotts of an
industrial nature, ie primary boycotts (ordinary strikes by workers
against their own employer) were no longer directly prohibited as
part of the regime of measures applying to secondary boycotts
- providing that both trade practices and industrial laws cannot
be used for stifling political action for non-commercial purposes
by public interest and community groups (eg green bans)
- transferring jurisdiction for secondary boycotts to the
Australian Industrial Relations Commission (AIRC) and the
Industrial Relations Court of Australia (IRCA)
- abolishing pecuniary penalties for secondary boycotts whilst
decriminalising boycott activity and retaining the right of injured
parties to ultimately sue for damages
- expanding available defences and exclusions to persons engaging
in what otherwise would be treated as unlawful conduct .
These revised provisions dealing with boycott activity of an
industrial nature are principally dealt with under sections 162 and
163 of the Industrial Relations Act 1988.
Comprehensive statistics are not available on the operation of
the Reform Act provisions but it appears that there has
been little reluctance amongst employers to use the current
provisions with the number of actions commenced in the AIRC at
least keeping pace with the number commenced in the Federal Court
under the previous law. (It must be noted, however, that the
remedies available under the respective provisions are not strictly
comparable.) There also appear to be only relatively minor delays
in gaining injunctive relief in the minority of cases where it has
been pursued.
(iv) 1996 Proposals
At first blush these appear to re-enact the old (pre 1994) law
with only marginal changes. Amongst those changes are:
- re-instituting provisions which deem unlawful conduct taken by
union members and officials to be the responsibility of the union
thereby exposing the union to liability unless it can show that its
members or officials acted without authority (proposed
section 45DC);
- incorporating the provisions into the proposed national
Competition Code; and
- continuing some post 1994 exemptions in cases of 'technical' or
constructive secondary boycotts which may arise where, employees
take boycott action in concert with non employees of the target
employer (refer-Explanatory Memorandum, page 183: par
18.8). This provison reflects a continuing intention to exclude
employees from liability except in cases where their conduct is
specifically rendered unlawful by the TP Act.
In summary, the Bill will:
- consolidate Commonwealth legislative provisions under the
TP Act rather than retaining the present split whereby
'industrial aspects' of secondary boycotts are dealt with under
federal industrial law and non industrial aspects (primarily
conduct of an anti-competitive nature) come within the ambit of the
TP Act;
- transfer responsibility for enforcement proceedings from the
specialist industrial court (the Industrial Relations Court of
Australia) to the more general jurisdiction of the Federal
Court;
- make separate provision ( proposed section
45E) for collusive arrangements between employers and
unions;
- expose unions to the hefty sanctions applicable under the
TP Act rather than the more modest statutory remedies
presently available under the IR Act. Item 2 inserts new
section 76(1A) into the TP Act to provide for pecuniary
penalties for corporate bodies (this includes unions by virtue of
their registration under the Industrial Relations Act) of up to $
750 000 for breaches of proposed sections 45D, 45DB, 45E or
45EA. For anti-competitive conduct in breach the TP
Act, unions can be fined up to $10 million (conduct in breach
of proposed section 45DA);
- whilst retaining existing access to common law remedies for
damages, the proposed changes provide for a less restricted system
of injunctive relief for persons affected by boycott activity;
- protecting individual union members from actions for damages
for prohibited conduct sanctioned or deemed to have been sanctioned
by their union [proposed subsection 45DC(4)];
- conciliation of boycott disputes will continue to be available
in the AIRC but will not be able to 'hold up' the commencement of
court proceedings for up to 72 hours as at present where the AIRC
considers that there is a reasonable prospect of resolving the
dispute by conciliation;
- the Commonwealth law will no longer override State boycott
legislation, hence persons engaged in prohibited boycott activity
may be liable either under an amended TP Act, State
boycott laws, or at common law;
- existing statutory defences will be restricted but appear wider
than under the pre 1993 law;
- with the re-introduction of measures similar to what were
45D(1A) and 45D(1B) under the pre-1993 law, the TP Act
will also outlaw many ordinary strikes as well as secondary
boycotts (see proposed section 45DB);
- new subsection 45DC(1) deems unions to have
engaged in boycott conduct in certain situations. It is claimed in
the Explanatory Memorandum that this proposed provision is
different to the provision held unconstitutional in the Fontana
Films case (1982). The issue of validity will again turn on
the question of whether the proposed law is a law with respect to
constitutional corporations or interstate trade and commerce;
- proposed section 45DB would appear to extend
beyond the industrial context and include activity of a political
nature (eg green groups protesting the export of woodchips and
uranium etc)(51); and
- consumer boycotts are not prohibited [section 51(2A) of the
TP Act].
The Schedule provides for the abolition of the Trade Union
Training Authority (TUTA) and for its operations to be wound
up.
TUTA in 1995-96 has the equivalent of 46 full-time staff and a
budget of $8.7 million.(52)
TUTA owns the Clyde Cameron College and the land on which it is
built in Wodonga. The College consists of training rooms and
residential accommodation for approximately 70 participants with
library and research facilities. The land and buildings were
revalued at $6.5million on 30 June 1993.(53)
TUTA is administered by an Executive Officer who is responsible
for the conduct of the affairs of the Authority in accordance with
policy formulated by the Executive Council which in turn subject to
Ministerial direction.
The TUTA was established by the Whitlam government under the
Trade Union Training Authority Act 1975 (the Act). Under
section 5 of the Act, the functions of the Authority are:
- to plan and develop, and to undertake, programs of trade union
training in Australia;
- to co-ordinate trade union training in Australia;
- to promote the provision and undertaking of trade union
training;
- to keep the trade union training that is being provided in
Australia under constant review and to re-assess and re-evaluate
that training in the light of experience; and
- to do anything incidental or conducive to the performance of
any of the preceding functions.
The Authority also produces publications and training materials
and consults with trade unions on their internal training
programs.
Courses are also conducted in various regional centres. TUTA
also provides correspondence courses for trade unionists.(54)
Regional Centre Programs are generally directed towards new or
inexperienced job representatives whilst courses conducted at the
Clyde Cameron College are tailored more for experienced union
representatives and those who have completed the basic skills
programs provided through the Regional Centres.
The bulk of TUTA's annual budget is provided by the Commonwealth
although there is a small trade union contribution to the cost of
courses conducted at the Clyde Cameron College.
On 7 November 1973, the then Minister for Labour and
Immigration, the Hon. Clyde Cameron announced that the Government
had approved a proposal for providing financial assistance for the
development of trade union training in Australia. In doing so the
Minister argued:
... that it was reasonable and sensible that the Government
should support trade union training just as it has devoted public
resources to the training of management personnel, such as the
recent commitment to finance a National School of Management at the
University of NSW.(55)
The Liberal and Country Parties supported the concept of a
National Council for Trade Union training, (April 1974 Employment
and Industrial Relations Policy) but saw its task as supporting, in
appropriate existing educational and training institutions,
programs specifically designed to meet the needs of trade unions.
The Hon. Malcolm Fraser, then Opposition spokesman on Labour, was
quoted in the Education Age on 12.3.74 as saying that a
Liberal Government would widen the scope of the national college to
provide facilities for employers as well as unions. He appeared to
endorse the suggestion of the Australian Council of Employers'
Federations (ACEF)(56) that the college might develop into a centre
for 'ideological indoctrination'.
On 30 March 1977, the Hon. A.A. Street, then the Minister for
Employment and Industrial Relations in the Fraser Government,
announced the establishment of an inquiry into trade union
training.(57) The Inquiry was to examine:
- the desirability of integrating trade union training into
industrial relations training generally and the closer integration
of trade union training with the general education system;
- the role, membership and staffing of the Statutory Authority
concerned with trade union training; and
- the cost and methods of financing trade union training.
The Committee of Inquiry, chaired by Commissioner Paine,
reported to the Government in August 1977. Its findings included
the following recommendations:
- trade union training should not be integrated into a general
system of industrial relations training but must be fully conscious
of its responsibilities in the area of industrial relations and be
seen as part of an ongoing process towards the orderly conduct of
industrial relations;
- TUTA courses should provide for greater employer involvement in
training activity. Courses should provide trade unionists with an
understanding of the organisation and operation of commerce,
industry and the various employer organisations and the manner in
which they relate, not only to each other, but also to governments
and the community;
- TUTA should be retained as an independent training institution
and not absorbed into the general education system but there should
be a closer relationship established with technical and further
education;
- a system of industrial relations training for unionists and
representatives of employers, separately and jointly according to
need, should be developed and carried out by TAFE;
- trade union training should essentially be training to equip
trade unionists with the necessary skills, knowledge and
understanding relevant to the function required to be performed.
Such training should be essentially technical and practical
training;
- TUTA should conduct a complete evaluation to determine the
specific extent of training both as to course content and numbers
required by undertaking an analysis of training requirements
according to the skills, knowledge and understanding each group or
individual requires to conduct his or her function within the trade
union movement;
- trade union training, as one of many facets of the total
education and training system, should continue to be funded by
Government through the Minister for Employment and Industrial
Relations;
- the funds to be provided for trade union training should be
commensurate with the Authority's training program;
- the funding of any joint industrial relations training at the
Clyde Cameron College should be the subject of discussions between
employers, trade unions and Government; and
- the two issues of paid educational leave and wage reimbursement
should be the subject of tripartite discussions.(58)
The Fraser Government accepted the general thrust of the
Committee's Report and on 25 May 1978 Minister Street introduced
legislation primarily directed toward restructuring and reforming
the management of the Authority. However, the changes to the Act,
which lessened the apparent influence of the union movement over
TUTA, went beyond the recommendations contained in Commissioner
Paine's Report.(59)
The ALP unsuccessfully opposed the Bill, claiming that:
- no questions had been raised within the Authority, by the
Minister or his Department about any lack of efficiency or
effective management within TUTA;
- the amendments would lead to political appointments to TUTA and
political inference;
- the position of National Director regularised by the amending
Act was likely to be over-paid.(60)
The Trade Union Training Authority Amendment Act (No.
1) 1978 came into operation on 1 August 1978.
Legislation enacted in 1981 altered the composition of the
Australian and State councils following the amalgamation of a
number of peak union councils with the ACTU.(61)
The next major set of amendments to the Act were made by way of
the Statute Law [Miscellaneous Provisions Bill (No.1)]
1985. These amendments:
- abolished the existing Australian Council for Trade Union
Training and established a new Council;
- vested in the new Australian Council responsibility for the
formulation of the policy of the Authority, which had been the
responsibility of the Executive Board;
- abolished the Executive Board and established an Executive
Committee, the functions of which are now determined by the
Australian Council;
- abolished the State Councils for Trade Union Training and
provided for a Regional Council for each State and Territory, with
the responsibility of ensuring that training provided by the Trade
Union Training Centre for the State or Territory accords with the
policy formulated by the Australian Council; and
- clarified the duties of the Director of Studies.
These changes went some way to addressing the concerns expressed
by the labour movement during debate on the 1978 Act.
Because of a minor defect in the relevant provisions of the 1985
Act the Government felt compelled to introduce the Trade Union
Training Authority Amendment Bill 1986.(62)
The last major set of amendments to the TUTA Act were in 1991
which, amongst other things, altered the constitution of the
Executive Council.
In 1994, TUTA underwent a major restructuring which resulted in
the decentralisation of the training of union delegates and
members. This process, called the Union Training Scheme, has
returned the responsibility for the training of union delegates
back to individual unions. This process has also contributed to a
significant reduction in TUTA costs and staffing with TUTA staff
only operating out of three locations instead of nine as was the
case until 1994.(63)
Schedule 20 - The Short Title of
the Industrial Relations Act
1988
Reflecting the extent of the changes provided for in the Bill,
the title of the principal Act is to amended to the Workplace
Relations Act 1996.
The Schedule provides for consequential changes to references to
the Act in other Commonwealth laws.
This Schedule makes a number of minor and technical changes to
the principal Act.
Items 2 and 7 make it plain that a person engaged in an unpaid
vocational placement is not an employee.
Item 6 alters the definition of Vice President of the Commission
to reflect the abolition of the Bargaining Division.
Sections 267 and 320 are repealed as it will no longer be
necessary for the Commission to protect conscientious objectors to
union membership from discrimination arising from awards of union
preference made by the Commission.
It has been a prodigious effort on the part of all those
involved to formulate, draft and present this package of measures
in the timeframe set by the Government.
On the 23 May 1996 the Senate voted to refer the Bill to the
Economics References Committee(64) for inquiry and report by 22
August 1996.
The terms of Reference of that Committee are extensive and go
well beyond the specific provisions of the Bill and include such
matters as the implications of the legislation for the Australian
economy and the impact on the balance between work and family
responsibilities and youth employment, education and training.
These terms of reference in part reflect some of the expansive
claims made regarding the likely implications of the legislation.
Minister Reith in a major speech delivered about one week before
the Bill was presented repeated the claim in the Coalition's Policy
platform (BPBW) that:
A more flexible industrial relations system will increase
productivity, achieve faster real growth in wages and, most
importantly, create more real jobs.
He then went on to compare Australia's economic performance
under the previous Government and under the present system of
conciliation and arbitration with that in other countries,
comparing Australia's performance with that of the United States,
United Kingdom and New Zealand on a number of selected
measures.(65)
In his Second Reading Speech, the Minister also asserted
that:
. . . the system this bill seeks to reform has helped contribute
to a long-term decline in workers' living standards in Australia,
relative to those in many other countries, while contributing to
our unacceptably high level of unemployment . . .
The Minister then went on to claim that structural rigidities in
the labour market are a major contributor to a list of 'sorry
outcomes' including:
- an intolerable rate of unemployment, at 8.9 percent (and a
'disgraceful' 27.8 percent for youth);
- 'booming' current account deficits contributing to our net
foreign debt of $185 billion (or almost 40 percent of GDP)
- real wages falling or 'stagnant' over most of the Labor years,
with a deteriorating gap between rich and poor;
- 'erratic' productivity growth, with industries like the
waterfront, that are so critical to our competitiveness, going
backwards compared to overseas benchmarks;
- industrial disputation, persistently high and at unacceptable
levels measured against those of our competitors
- the highest real interest rates in the developed
world.(66)
It is not, of course, the function of this Digest to
dispute any or all of the above claims and more importantly it is
beyond the scope of this paper to seek to lay blame for the sort of
outcomes which the Coalition Government clearly feels impelled to
address.
In previous Digests, however, the limitations of
legislative solutions to real and perceived economic problems have
been noted as has the ongoing debate about the nature and impact of
industrial relations institutions. In particular we have remarked
on the stultifying effect of constant legislative change. To quote
an earlier Digest in November 1993:
The effect of the arbitral system on economic outcomes remains
an open question. (Indeed, there has been a long-standing view,
principally associated with former President of the Conciliation
and Arbitration Commission, Sir Richard Kirby, that the industrial
tribunals do not act as an arm of economic policy-making, but
function primarily to resolve industrial disputes.)
The AIRC and its predecessors have been associated with a range
of wage-fixing principles and an equally varied range of economic
outcomes over the course of the last 89 years. The Commission's
recent performance, though criticised in some quarters (especially
following the April 1991 National Wage Case Decision), has on the
'tests' of wage moderation and industrial harmony been above
average. Nominal wage increases in the award area over the past
three years have been very modest with the indices moving less than
2 percentage points in the past two and a half years. Concurrently,
the rate of industrial disputation in terms of days lost per
thousand employees is approximately 40% of the rate applying in
1982. Of this reduced figure, disputes over wages, hours of work
and compensation represent a relatively small component. For
example, in the 12 months to June 1993 disputes over money and
hours of work represented less than 15% of the total days lost in
industrial disputes. . .
Nonetheless, constant changes to the legislation (for example,
three sets of major changes to the law regulating workplace
bargaining arrangements in five years) produce uncertainty and
provoke institutional inertia. There is a considerable risk that
where legislative change becomes the norm, the parties will seek to
achieve their strategic goals through the legislative route rather
than by working co-operatively or imaginatively with the law as it
stands.(67)
In examining the wider implications of the Bill, the Senate
Economics Committee has been asked to explore a number of systemic,
and perhaps unanswerable questions, regarding the worth of
competing labour market models. Some of the issues the Committee
may find itself having to confront are:
- Is the primary role of the AIRC to resolve industrial disputes
and, if it is, is that role unduly inhibited by further restricting
the discretion of the Commission to deal only with certain matters
?
- What, if any, are the disadvantages of moving to a more
decentralised model of bargaining ?
- Can Australia's economic performance be significantly enhanced
by changes to federal industrial laws or are other arms of economic
policy (including taxation policy) likely to produce far more
significant and lasting results ?
- To what extent are 'structural rigidities' endemic in all
labour markets and to what degree are they unreasonably exacerbated
by the arbitral model ?
- Will the proposed changes significantly or systematically
disadvantage parts of the Australian workforce ?
With regard to the overall advantages and disadvantages of the
arbitral model, readers are encouraged to seek out an excellent
summary piece written by Professor Charles Mulvey which appears in
Alternatives to Arbitration,(68) a collection of papers
prepared in the wake of the Hancock Report on Australian
Industrial Relations Law and Systems (1985). (See also a
subsequent paper given by Professor Mulvey to a Parliamentary
Library Seminar series in 1988 entitled Issues in Industrial
Relations.)(69)
As to specific issues, again there is considerable room for
agnosticism about the macro economic effects of reducing the role
of the AIRC. Here national rates of productivity growth provide an
interesting case study.
As noted above, it is generally recognised that productivity
growth in Australia in recent times (to use Minister Reith's words)
has been 'erratic'. Moreover, the performance of certain industries
has, according to many commentators, been particularly dismal.
Indeed it is frequently assumed that Australia's productivity
performance measured against comparable international standards is
not good.
No one argues against enhanced productivity provided it is not
achieved by socially unacceptable means. Higher productivity simply
means a better return on any given level of factor inputs. It is
generally reflected in a higher standard of living either through
higher wages, higher profits or a combination of both.
The search for higher returns from productivity, however, may be
viewed from two distinct perspectives: (a) generating the spoils
and (b) dividing the spoils.
In relation to dividing the gains, it is not readily apparent
that because there is more to 'go round' that the contest over 'the
spoils' between owners, managers and workers alters to any great
degree. This flows from the simple economic assumption that human
desires are 'infinite'. Hence higher levels of productivity do not
automatically equate with an end to industrial disputation. Even
more productive workplaces are likely from time to time to require
the services of an independent third party or umpire to resolve
differences; a fact clearly, but not unreservedly, recognised in
the present Bill.
In relation to enhanced economic efficiency (more 'spoils' per
unit of input), the removal or downgrading of the industrial
'umpire' may make a net positive contribution but not if it
increases significantly the (transaction) costs of bargaining.
Other OECD countries, including those such as the United States,
with lower unionisation rates and less pervasive institutional
arrangements for third party dispute resolution have also
experienced flat or erratic productivity growth over the past
quarter century. For example, between 1979 and 1994 US labour
productivity in the business sector grew by only 0.8 percent per
annum whilst in Australia the average rate was 1.2 percent. The
United Kingdom, with a shrinking union movement and a decentralised
bargaining system experienced labour productivity growth of 2.0
percent on average over the same period but this was lower than in
the period 1960-73 when union numbers were higher and bargaining
arrangements more bureaucratic.
To conclude, the answers to the questions raised by the Senate
reference need to be sought not just assumed. To quote two
academics who have come to be associated with the development of
the present Bill, Professors Charles Mulvey and Judith Sloan:
As enterprise bargaining becomes a more embedded institutional
feature of the Australian labour market, some of the questions that
will need to be addressed by researchers include the following.
What is the impact of enterprise bargaining on productivity both at
the macro and the micro levels ? What is the impact of enterprise
bargaining on observed earnings inequality ? What factors impede
firms from participating in formal enterprise bargaining ? What is
the role of unregistered agreements in the new environment ? What
are the effects of the interaction of enterprise bargaining and
compulsory arbitration ?
Ultimately, the most interesting question about institutional
arrangements is whether they matter [to economic performance].
Would the substantive outcomes be any different if institutions
were changed dramatically . . . at the very least we need more
information on this matter . . .
Finally, international comparative analysis - one area that has
burgeoned in the past decade, although not necessarily undertaken
by Australian authors - clearly underlines the similarity of
outcomes for countries with quite different industrial relations
institutions, for instance, and likewise, the dissimilarity of
outcomes for countries with similar institutions. The explanation
of outcomes is clearly multi-factorial and any given change in
institutional settings may have limited effect without other
changes.(70)
If institutional arrangements have marginal or random effects on
economic efficiency, it may perhaps be that in framing industrial
laws, governments should give greater weight to other
considerations such as the promotion of industrial harmony and
social equity.
(1) The three earlier measures being the ill-fated Industrial
Relations Bill 1987 and the Industrial Relations (Consequential
Provisions) Bill 1987; the Industrial Relations Act 1988
and the Industrial Relations (Consequential Provisions) Act
1988; and the Industrial Relations Reform Act 1993.
In late 1991, Minister Senator Peter Cook had proposals for
significant changes to the Act 'on the drawing board' but
legislation was not introduced.
(2) The proposal to allow State agreements to override federal
awards was perhaps not flagged with sufficient detail but
(arguably) is covered by the generic reference to
Commonwealth/State Co-operation at paragraph 13.2 of the
Coalition's IR Policy document, Better Pay for Better
Work.
(3) A mandate which critics will argue is qualified by the
Coalition's pre-election 'rock solid' commitment that workers will
not be worse-off under this legislation.
(4) Economic Planning and Advisory Commission, Commission
Paper No.11, 'The Changing Australian Labour Market', edited
by Keith Norris and Mark Wooden, March 1996: 6.
(5) OECD, Economic Surveys, Australia, 1994: 78.
(6) ibid, 1994: 97.
(7) For a discussion of developments in wages policy over the
past twenty years refer to Indecs, State of Play 8, 1995:
45-64.
(8) EPAC, op cit: 10.
(9) Ross Gittins, 'Mr Reith's bill of fare for industrial
relations', Sydney Morning Herald, 25 May 1996.
(10) Acting through the Governor-General.
(11) Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995)
131 ALR 657.
(12) Termination, Change and Redundancy Case (1984) 8
IR 34, Termination, Change and Redundancy Case (1984) 9 IR
115.
(13) The only remedy being a pecuniary penalty under section 178
granted by the Court.
(14) The Commission also exercised what is sometimes referred to
as a de facto jurisdiction in regard to a range of
termination matters which extended beyond the scope of its
constitutional competence. In such cases, the Commission would
agree to conciliate where the parties gave their prior agreement to
abide by whatever outcome was reached by the Commission.
(15) Gregory v Phillip Morris Ltd (1988) 80 ALR
455.
(16) Byrne and Frew v Australian Airlines Limited
(1994) 120 ALR 274.
(17) Byrne v Australian Airlines (1995) 131 ALR
422.
(18) Some categories had already been excluded as from 30 March
1994.
(19) Maggs v Comptroller General of Customs (1995) 58
IR 40.
(20) Liddell & Anor v Lembke t/as Cheryl's Unisex Salon
& Anor (1994) 127 ALR 342.
(21) But refer proposed paragraph 170CC(1)(e)
which has the potential to significantly widen present
exemptions.
(22) op cit: 43.
(23) Except that it is possible to approach the Court for breach
of notice or where there is a want of jurisdiction in the AIRC (see
clause 170HC).
(24) Adele Horin, 'Women MPs oddly silent on equal pay',
Sydney Morning Herald, 25 May 1996.
(25) Refer Jeff Borland and Keith Norris, 'Equity', in The
Changing Australian Labour Market, EPAC Commission Paper
No.11, 1996: 87-106.
(26) Submission to Hancock Inquiry, December 1983: 4.
(27) Hancock, op cit, recommendation 21.
(28) Breen Creighton and Andrew Stewart, Labour Law: An
Introduction, second edition, 1994: 119.
(29) ibid: 121.
(30) Bills Digest, 12 November 1993, op cit: 10
(31) For Certified Agreements, see paragraph 170MC(1)(b) and
subsection 170MC(2) of the Act. For Enterprise Flexibility
Agreements refer to paragraph 170NC(1)(d) and subsection 170NC(2)
of the Act.
(32) Refer paragraphs 170MC(4)(a) and (b).
(33) Subsection 170ND(7) and (8).
(34) Subsections 170NB(1) and (3).
(35) Section 170RB.
(36) Refer paragraphs 170ND(3) and (4).
(37) Paragraph 170MD(7).
(38) Paragraphs 170NA(1)(a) and 170NC(1)(b) and (c).
(39) Subsections 170MD(5) and 170ND(10).
(40) Section 88A stipulates that 'awards (other than paid rate
awards) act as a safety net of minimum wages and conditions of
employment underpinning direct bargaining.' Refer also paragraphs
170MC(1)(a) and 170NC(1)(b).
(41) See Division 4 of Part VIB.
(42) Refer section 170MG and 170NG.
(43) Refer sections 170MD(3) and 170ND(5).
(44) These statutory minima also apply to certified
agreements.
(45) Australian Courts of Law, 1993: 256-257.
(46) op cit: 12.
(47) Lest there be any allegations of wholesale
lifting/borrowing from Government publications, the author of the
Digest notes that he was also the principal author of the
1993 Discussion Paper.
(48) DIR, Information Paper, August 1993: 1.
(49) ibid: 1-2
(50) ibid: 109-112.
(51) The maximum penalty here will be $ 750 000 except where the
boycott also has the purpose and effect of lessening
competition.
(52) Portfolio Budget Statements 1995-96, Industrial
Relations Portfolio: 38-39.
(53) TUTA, Annual Report 1994/95: 27.
(54) A total of 3,052 correspondence students were enrolled in
Trade Union Postal Courses in 1986/7.
(55) Report of the Interim Committee of the Australian Council
for Trade Union Training 1973-74: 3
(56) A forerunner of the Confederation of Australian Industry
(CAI) and the Australian Confederation of Commerce and Industry
(ACCI).
(57) However, in his Press Release (No.23/77), Mr
Street stated that 'the concept of trade union training and
Commonwealth financial involvement had bipartisan support'.
(58) Report of Committee of Inquiry into Trade Union Training,
AGPS, Canberra, 1977:47-50.
(59) See Appendix 2 for list of major amendments
contained in the 1978 Act.
(60) See House of Representatives, Parliamentary
Debates (Hansard) 31 May 1978: 2845-2888.
(61) Statute Law (Miscellaneous Amendments) Act 1981
and the Statute Law Revision Act 1981.
(62) Introduced in February 1986.
(63) TUTA, op cit: 7-8.
(64) This is only the second Bill to be sent to a References
Committee. These as presently constituted have a non-Government
majority. The voting members of the Economics references Committee
are 4 ALP, 3 Coalition and 1 Australian Democrat.
(65) Address to Sydney Institute, Real Reform - the
Government's Industrial Relations Agenda, 15 May 1996.
(66) Hansard, 23 May 1996: 1297-1307 at 1298 and
1299.
(67) PRS, Bills Digest, Industrial Relations Reform
Bill 1993, 12 November 1993: 3 and 23.
(68) 'Alternatives to Arbitration: overview of the debate', in
Alternatives to Arbitration edited by Richard Blandy and
John Niland, National Institute for Labour Studies, 1986:
11-28.
(69) Professor Mulvey was one of a group of three selected by
Minister Reith to oversee the drafting of the present Bill. Refer:
Sydney Morning Herald, 'Anti-union Group on Reform Body',
25 March 1996.
(70) EPAC, 'Labour Market Institutions' in The Changing
Australian Labour Market, op cit: 69 and 71.
Bob Bennett Ph. 06 277 2430
4 June 1996
Bills Digest Service
Parliamentary Research Service
The Bills Digest Service expresses its thanks to Ms Phillipa
Weeks of the Law School, Australian National University for her
assistance in preparing this Digest. Thanks also to Bronwyn Young,
Susan Downing and Bill Bak of LPA and Stephen O'Neill of ECIR..
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
PRS staff are available to discuss the
paper's contents with Senators and Members and their staff but not
with members of the public.
ISSN 1323-9032
Commonwealth of Australia 1996
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
1996.
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