EXECUTIVE SUMMARY
CHAPTER ONE - OVERVIEW
The Workplace Relations and Other Legislation Amendment Bill 1996
was introduced into Parliament on 23 May 1996. The Bill was passed by
the House of Representatives on 26 June 1996 and introduced into the
Senate on 27 June 1996. The Terms of Reference for this inquiry were
passed by the Senate on 23 May 1996.
CHAPTER TWO - OBJECTS OF THE BILL
The majority of the Committee has concluded that the Principal Objects
provisions and the award Objects provisions in the Workplace Relations
Bill have some flaws. These flaws are not so fundamental that the provisions
of the Bill should be deleted in their entirety. However, some amendments
need to be made, particularly the inclusion of a statement requiring
the Act to promote fairness and the interests of employees.
The majority of the Committee therefore recommends that the Objects
provisions (sections 3 and 88A) should be amended to take account of
the majority of the Committee's concerns. (Paragraphs 2.24 and 2.25)
The Australian Democrats member of the Committee agrees in principle
with this conclusion and recommendation but has additional concerns
that are outlined in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER THREE - FEDERAL-STATE ARRANGEMENTS
The majority of the Committee has concluded that it is not desirable
to change the balance between the Federal and State systems as envisaged
by the Bill. The majority of the Committee believes there would need
to be a compelling argument to change the long standing and generally
well understood arrangements in this regard. None of the arguments advanced
by those supporting the Bill satisfied the majority of the Committee
in this regard.
The majority of the Committee therefore recommends that those provisions
which seek to change the balance between the Federal and State systems
(such as sections lll(l)(g), 152 and 152A) should not be enacted. (Paragraphs
3.29 and 3.31)
The Australian Democrats member of the Committee agrees in principle
with this conclusion and recommendation but has additional concerns
that are outlined in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER FOUR - CHANGES TO THE SYSTEM AND ITS INSTITUTIONS
A. The Australian Industrial Relations Commission And The Award
System
Effects of Unequal Bargaining Power
The majority of the Committee has concluded that generally the employment
relationship is characterised by a bargaining power imbalance, employers
having stronger bargaining power than employees.
The majority of the Committee is concerned that the Bill makes changes
which undermine the capacity of the system and its institutions to redress
this imbalance and ensure that employers do not take unfair advantage
of the imbalance.
This concern influences many of the specific recommendations that are
recorded subsequently.
The Government members of the Committee disagree with the conclusion.
1. THE AWARD SYSTEM AND ITS PROTECTIONS
Access to Awards
Difficulty of Obtaining a Federal Award
The majority of the Committee has concluded that the proposals to restrict
the capacity of unions and employees to access the Federal award system
are an inappropriate restraint on the Commission's powers and will mean
more lengthy and complex litigation with the focus being less on the
appropriateness of wages and conditions and more on legal technicality
and form. The majority of the Committee also believes there is no justification
for putting barriers in the way of Federal award coverage where the
alternate State jurisdiction is clearly and unambiguously deficient.
The majority of the Committee therefore recommends that these proposals
(such as the repeal of subsections 111(1A) - (1H) and new section 111AAA)
should not be implemented. (Paragraph 4.28)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
State Agreements to Override Federal Awards
The majority of the Committee has concluded that the proposal to permit
State enterprise agreements to override Federal awards will create an
obvious means by which the wages and conditions of large numbers of
Australians can be reduced. The majority of the Committee believes this
is totally unacceptable, particularly given the Prime Minister's 'rock
solid guarantee' that no Australian worker would be worse off under
this Bill.
The Labor members of the Committee have also concluded that it cannot
support any compromise proposal to require State agreements to comply
with the minimum conditions for Federal agreements as outlined in proposed
Schedule 13. Although this is an improvement on the existing proposal,
the Labor members of the Committee (as will be seen later) believes
that the Federal minimum conditions are profoundly inadequate to protect
the wages and conditions of employees.
The majority of the Committee therefore recommends that proposed
Section 152 should not be enacted. (Paragraph 4.48)
The Australian Democrats member of the Committee agrees with much
of this analysis but has additional comments which are set out in his
Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
The Content of Awards
Allowable Award Matters - Section 89A
The Labor members of the Committee have concluded that the proposal
to reduce awards to 18 allowable matters is fundamentally flawed. The
Labor members of the Committee are concerned that this proposal would
place many existing entitlements outside awards and thus ensure that,
without renegotiation, the conditions of employees will be unequivocally
reduced. The Labor members of the Committee believe that this will ensure
another breach of the Prime Minister's 'rock solid guarantee'.
The Labor members of the Committee also finds that this process of
so-called award simplification is arbitrary and deficient, particularly
because the legislature purports to declare that the matters outside
the 18 allowable matters are in some way less important or less worthy
of award protection than those matters in the enumerated list.
The Labor members of the Committee therefore recommend that proposed
section 89A should not be enacted. (Paragraph 4.70)
The Australian Democrats member of the Committee agrees but makes
additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Superannuation
The majority of the Committee has concluded that the removal of superannuation
as an award matter will substantially disadvantage a large number of
employees, particularly those on lower incomes.
The majority of the Committee therefore recommends that superannuation
should not be removed as an award matter. (Paragraph 4.77)
The Australian Democrats member of the Committee makes further recommendations
on this matter in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Removal of the 'Secure, Relevant and Consistent' Requirement
for Awards
The Labor members of the Committee have concluded that there is no
justification for the proposal to remove the requirement that awards
provide secure, relevant and consistent wages and conditions of employment.
The Labor members of the Committee believe this is an attempt to retain
awards, but make them less comprehensive and less relevant. Specifically,
it seems the Commission is being directed to ensure that wages and conditions
are lower than they would otherwise be under the existing system. The
Labor members of the Committee cannot condone this.
The majority of the Committee therefore recommends that the proposal
to replace existing Sections 88A and 90AA with proposed Sections 88A
and B should not be implemented. (Paragraph 4.95)
The Australian Democrats member of the Committee agrees with the
analysis of this part but has qualified his view in his Supplementary
Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Abolition of Paid Rates Awards
The majority of the Committee has concluded that the proposal to abolish
paid rates awards fails to appreciate that many benefits are afforded
to employees (such as nurses, teachers and public servants) as a result
of paid rates coverage. Paid rates awards ensure that wages are relevant,
consistent and secure, that they are enforceable and that they will
be adjusted over time. Where bargaining occurs over and above a paid
rates award, the award also provides a comprehensive benchmark for negotiations.
The majority of the Committee is concerned that the removal of paid
rates awards may leave employees worse off, again contrary to the Prime
Minister's 'rock solid guarantee'.
The majority of the Committee therefore recommends that the Commission
should continue to have the power to make and administer paid rates
awards consistent with the existing provisions. (Paragraph 4.114)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
2. THE PREVENTION AND SETTLEMENT OF INDUSTRIAL DISPUTES
Limitation of Arbitration to Allowable Award Matters (Section 89A)
The Labor members of the Committee has concluded that the proposal
to confine allowable award matters to 18 matters will preclude the Commission
from speedily and adequately settling industrial disputes regardless
of their subject matter. The Committee believes this will involve considerable
detriment to the community as a whole, and to the specific parties to
an industrial dispute.
The Labor members of the Committee therefore recommend that, for
this reason also, proposed section 89A should not be enacted. (Paragraph
4.127)
The Australian Democrats member of the Committee agrees with this
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Industrial Disputes and Paid Rates Awards
The majority of the Committee has concluded that the proposal to abolish
paid rates awards will also preclude the Commission from providing an
ordered and socially responsible resolution of potential or existing
disputes, particularly in areas sensitive to public interest considerations
(such as nursing, teaching, emergency services and public service) and
in areas where bargaining can be destructive rather than constructive
(such as the oil and airline industries).
The majority of the Committee therefore recommends that for these
reasons also the Commission should continue to have the power to make
and administer paid rates awards consistent with the existing provisions.
(Paragraph 4.137)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Arbitration to Become a 'Last Resort'
The Labor members of the Committee have concluded that the proposal
to permit arbitration only as a 'last resort' is unnecessary. No evidence
was put to the Labor members of the Committee which indicated that the
Commission exercises its arbitral powers in a way which is inconsistent
with the promotion of agreements and bargaining. Further, it is likely
that the need to demonstrate 'last resort' in order to access the Commission's
arbitral powers will increase the cost and time involved with such proceedings
with significant arguments about whether the 'last resort' has been
demonstrated.
The Labor members of the Committee therefore recommend that this
proposal (especially the amendment of Paragraph 89(a)(ii)) should not
be implemented. (Paragraph 4.146)
The Australian Democrat member of the Committee agrees with the
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
The majority of the Committee has also concluded that the proposal
to require conciliation before arbitration after a protected bargaining
period has been terminated by the Commission (because it is posing a
threat to public safety or health or to the economy) is impractical.
In the serious circumstances in which a protected bargaining period
will have been terminated, and with the lack of likelihood of resolution
by any other means, the majority of the Committee believes the Commission
must not be prevented from arbitrating to protect the public interest.
The majority of the Committee therefore recommends that this proposal
(proposed Section 170MX) should not be implemented. (Paragraph 4.151)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
B. AGREEMENTS
SPECIFIC CONCERNS
'No Disadvantage' versus Minimum Conditions
The majority of the Committee has concluded that the proposal to implement
a test for certified agreements and Australian workplace agreements
which requires the wages and conditions to be 'no less favourable' than
specified statutory minima is not adequate to protect employees and
could very well lead to many employees, particularly those with little
or no bargaining power, being worse off. Given the Prime Minister's
'rock solid guarantee' that no-one would be worse off, this is something
which the majority of the Committee cannot accept.
The majority of the Committee has also concluded that there is no justification
in the proposal to remove the existing 'no disadvantage test'. The majority
of the Committee believes it is more appropriate that the minimum conditions
be the subject of consideration and determination by the Commission,
not by the Parliament.
The majority of the Committee therefore recommends that this proposal
(including the enactment of Schedule 13 of the Bill) should not be implemented.
(Paragraph 4.192)
The Australian Democrats member of the Committee agrees with this
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Termination of Agreements
The majority of the Committee has concluded that the proposal to permit
either party to unilaterally terminate a certified agreement or AWA
after its expiry date will enable an employer to threaten their workforce
with significant reductions to existing entitlements if they do not
agree to proposals for a new agreement. This does not create a level
playing field. The majority of the Committee is also concerned the proposal
may lead to an increase in industrial action. The majority of the Committee
does not believe there is any justification for effectively requiring
employees to take industrial action in order to simply retain existing
conditions. The public interest is certainly not served by such a system.
The majority of the Committee therefore recommends that this proposal
(proposed sections 170MH and 1 70VM) should not be implemented. (Paragraph
4.203)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Collective Bargaining
The majority of the Committee believes the Bill cannot and should not
ignore the ability of an employer to promote individual contracts in
order to undermine employees' access to the protection of collective
bargaining. The majority of the Committee believes the Bill must ensure
that there can be no discrimination against those who choose to bargain
collectively (for example, through certified agreements) rather than
individually (for example, through AWAs). This will also ensure that
collective bargaining is promoted and encouraged, which the majority
of the Committee believes is important.
The majority of the Committee therefore recommends that amendments
be introduced into the Bill to meet these concerns. (see Paragraph 4.217)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Union Role in Review of Agreements
The Labor members of the Committee have concluded that it is not in
the interests of employees, or the community at large, for unions to
be totally excluded from the review of certified agreements or AWAs,
even where they are not parties.
The Labor members of the Committee believe that unions can play a useful
role in providing the Commission with information and submissions to
assist in its deliberations. Unions also have a legitimate interest
in representing people who may be potentially affected by the proceedings,
including the interests of persons who may be prospectively affected.
The interests of unions are also affected by agreements which override
awards, and so natural justice requires that they be heard before their
interests are affected.
The Labor members of the Committee therefore recommend that the
Bill's provisions concerning the review process for both certified agreements
and AWAs should be amended to include a right for unions to intervene
whenever necessary to ensure that all relevant facts and issues will
be disclosed, that the interests of all persons potentially affected
by the matter will be protected, or that the interests of the union
itself are not affected before the union has an opportunity to be heard.
(Paragraph 4.230)
The Australian Democrats member of the Committee does not support
this recommendation. Further comment is provided in his Supplementary
Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Certified Agreements
Non-Union Certified Agreements
The majority of the Committee has concluded that there is no justification
for the proposal to create a non union stream of certified agreements.
The majority of the Committee believes that it is simpler and more efficient
to create one stream for non-union agreements. This is provided by the
creation of the AWAs, which of course have the capacity for multi-employee
agreements.
The majority of the Committee therefore recommends that this proposal
(proposed Division 2 of Part VIB) should not be implemented. (Paragraph
4.240)
The Australian Democrats Member of the Committee agrees in principle
with this conclusion and recommendation but has additional comments
that are outlined in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Consultation Requirements
The majority of the Committee has concluded that there is no warrant
for the proposal removing the requirements for employers to carry out
genuine consultation and to ensure that the interests of particular
groups, particularly the more vulnerable, are taken into account.
The majority of the Committee therefore recommends that this proposal
should not be proceeded with. (Paragraph 4.247)
The majority of the Committee has also concluded that the Commission
should be able to satisfy itself that a certified agreement is genuinely
approved by a majority of employees before it is certified.
The majority of the Committee therefore recommends the Bill should
be amended to allow the Commission to require the conduct of a ballot
where it considers that is necessary to satisfy itself that a certified
agreement is genuinely approved.
The Government members of the Committee disagree with these conclusions
and oppose the recommendations.
Multi-Employer Agreements (Paragraph 4.256)
The majority of the Committee has concluded that there is no justification
for the various proposals which create an inequality of treatment as
between single-business certified agreements and multiemployer certified
agreements. The majority of the Committee believes that multi-employer
agreements may be preferred by the parties in some circumstances, particularly
as they tend to remove labour costs from competition between businesses
within an industry.
The majority of the Committee therefore recommends that these proposals
(especially proposed section 170LC) should not be implemented.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Australian Workplace Agreements (AWAs)
Reviewability of Australian Workplace Agreements
The majority of the Committee has concluded that there is an overwhelming
case for independent review of AWAs before they come into force. This
is the only effective way to ensure that employees, particularly the
more vulnerable, have genuinely made the agreement (free from any coercion)
and have been provided with the requisite minimum terms and conditions.
The majority of the Committee has also concluded that, although there
are other alternatives available, the Australian Industrial Relations
Commission is best-suited to this task. The Commission has the knowledge
and expertise to be able to properly test whether the AWA was genuinely
made by the employee and does include the minimum terms and conditions.
The majority of the Committee also notes that the Bill already provides
a reviewing role for the Commission in the case of certified agreements.
The majority of the Committee believes that given the same test will
be applied for CAs and AWAs the same body should be given the task of
applying that test.
The majority of the Committee therefore recommends that the Bill
should be amended to provide for pre-agreement review of AWAs by the
Commission. (Paragraph 4.283)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
AWAs as a Condition of Employment for Prospective Employees
The majority of the Committee has concluded that the proposal to permit
employees to enter into AWAs before employment creates the potential
for AWAs to be proffered on a 'take it or leave it' basis. The majority
of the Committee is very concerned that this will permit pressure to
be applied to vulnerable employees seeking work to accept lower wages
and conditions.
The majority of the Committee therefore recommends that this proposal
(proposed subsection 170VK(2)) should not be implemented. The majority
of the Committee also recommends that there be further consideration
of a prohibition on the offering of an AWA as a condition of employment.
(Paragraph 4.291)
The Australian Democrats Member of the Committee agrees with this
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
C. OTHER INSTITUTIONAL CHANGES
1. AIRC - OTHER CHANGES
The majority of the Committee has concluded that the proposal to abolish
the Bargaining Division of the Commission is counter-productive. The
Bill places greater emphasis on agreement-making, and therefore increases
the need for supervision by the Commission. The majority of the Committee
believes this suggests a greater need for a discrete Division of Commission
to deal with bargaining matters, and not a lesser need as is implied
in the Bill.
The majority of the Committee therefore recommends that the Bargaining
Division of the Commission be maintained. (Paragraph 4.297)
The Australian Democrats member of the Committee agrees with this
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
2. THE EMPLOYMENT ADVOCATE
The Labor members of the Committee have concluded that the proposal
to create the Employment Advocate contains some considerable weaknesses.
There appears to be a conflict of interest in its having both an advisory
and enforcement function, and in its role of advising and representing
both employers and employees.
In any event, the Labor members of the Committee believes that all
of the Employment Advocate's proposed functions can be (and in some
cases already are) performed by either the Commission or the Department
of Industrial Relations. The Committee believes it is unnecessary duplication
to create yet another body to perform these functions, particularly
as this will require additional funding.
The Committee therefore recommends that the proposal to create the
Employment Advocate (Schedule 3 of the Bill) should not be implemented,
and that its proposed functions should be allocated between the Commission
and the Department of Industrial relations. (Paragraph 4.322)
The Australian Democrats member of the Committee dissents from this
recommendation. Further comment is provided in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
3. THE INDUSTRIAL RELATIONS COURT
The majority of the Committee has concluded that the proposal to transfer
the jurisdiction currently held by the Industrial Relations Court to
the Federal Court of Australia is unwarranted. The majority of the Committee
is concerned the IRC's specialist knowledge, speed in procedure and
decision making and non-legalistic approach to its dealings will be
lost if its jurisdiction (and therefore specialist officers and support
staff) are transferred to the Federal Courts general jurisdiction.
The Labor members of the Committee therefore recommend that the
existing jurisdiction of the Industrial Relations Court be retained.
(Paragraph 4.330)
The Australian Democrats Member of the Committee agrees with this
analysis but has additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
D. UNFAIR DISMISSAL
The Labor members of the Committee have concluded that there are a
number of specific weaknesses in the proposed changes to the unfair
dismissal laws.
The Labor members of the Committee believe there is no rationale for
the piecemeal coverage of the Federal unfair dismissal jurisdiction
as proposed. The over reliance on State systems means that the Bill
does not provide a broad and uniform safety net of protection for all
Australians.
The Labor members of the Committee also did not hear any compelling
evidence as to why compensation orders should be adjusted to take account
of the viability of the liable employer. Moreover, the Labor members
of the Committee are concerned that this proposal introduces a principle
of discrimination in compensation which appears to be unknown in any
other field, including the common law.
Finally, the Labor members of the Committee have strong doubts about
the introduction of costs into proceedings before the Commission. The
Labor members of the Committee are concerned that in a jurisdiction
where costs have not been administered the imposition of costs will
simply promote the use of legal representatives. This as an unhelpful
trend, particularly in the conciliation stages of these claims.
The Labor members of the Committee therefore recommend that the
full extent of constitutional power should be used to provide Federal
coverage to all Australians. (Paragraph 4.349)
The Labor members of the Committee also recommend that the proposal
to permit adjustment of compensation depending on the viability of the
employer (proposed subsections 170CH(2) and (7)) should not be implemented.
Finally, the Labor members of the Committee recommend that the Bill
should be amended so it does not provide access to costs in the Commission's
unfair dismissal jurisdiction (proposed section 1 70CJ).
The Australian Democrats Member of the Committee supports many of
these arguments but comments further about them in his Supplementary
Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
E. RIGHT OF ENTRY
The majority of the Committee has concluded that the limits the Bill
proposes to place on existing rights of entry arrangements should be
rejected. The majority of the Committee notes that right of entry plays
an important role in ensuring compliance with awards and agreements,
at no cost to the Government. This can give comfort to business competitors
who can be more confident that they are not being undercut by unscrupulous
operators.
The majority of the Committee is concerned that this compliance function
will be severely curtailed by the proposed need for a written invitation,
and proposed requirement that this invitation (or a certificate obtained
in lieu) be shown to the employer. These limitations seem burdensome
and bureaucratic, and could permit intimidation of employees. Moreover,
the majority of the Committee heard very little evidence suggesting
that the existing right of entry provisions have been abused. The Committee
believes regulation of right of entry is appropriately handled by the
Commission.
The majority of the Committee therefore recommends that the Bill's
proposals (sections 286 and 286A) should not be implemented, and that
the existing right of entry arrangements, including the ability of the
Commission to award the right, should be maintained. (Paragraph 4.370)
The Australian Democrats Member of the Committee supports these
conclusions and recommendations but has made additional comments in
his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER FIVE - EFFECTS OF PARTICULAR GROUPS OF EMPLOYEES AND EMPLOYERS
PART-TIME AND CASUAL WORKERS
The majority of the Committee has concluded that it cannot support
the proposal to remove the Commission's power to establish minimum and
maximum hours for part-time workers.
Labor members of the Committee cannot support the proposal to remove
the Commission's power to limit the proportion of employees that may
be employed in a particular type of employment.
As to the first proposal, the majority of the Committee notes that
there was much evidence which suggested this change could substantially
disadvantage part-time workers, especially in creating uncertainty about
working hours from day-to-day. Further, the majority of the Committee
also notes that the available evidence does not support the proposition
that the setting of minimum or maximum hours has promoted casual employment
over part-time employment.
As to the second proposal, the Labor members of the Committee believe
this is inconsistent with the Government's stated desire to promote
part-time employment over casual employment. To the contrary, limits
on proportions of employees are often framed to promote part-time employment.
The majority of the Committee therefore recommends that these proposals
(proposed subsection 89A(4)) should not be implemented, and that the
Commission should retain the power to make an award setting maximum
and minimum hours of part-time work. (Paragraph 5.23)
Labor members of the Committee recommend that proposals to abolish
the Commission's power to set limits in relation to employees in particular
types of employment should not be implemented.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
The Australian Democrats member of the Committee agrees with this
analysis but has made additional recommendations in his Supplementary
Report.
WOMEN
The majority of the Committee has concluded that the proposal to repeal
the Commission's power to make equal remuneration orders will significantly
disadvantage the pursuit of equal remuneration for women. The majority
of the Committee is certainly not convinced that the alternative avenue
of redress, the Human Rights and Equal Opportunities Commission, is
adequate.
The majority of the Committee therefore recommends that this proposal
(Schedule 8) should not be implemented. (Paragraph 5.36)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
The majority of the Committee also notes that some of the proposals
referred to in Chapter Four may cause significant disadvantages for
women, particularly those with little or no bargaining power. The majority
of the Committee notes in particular the proposals to remove the Commission's
power to regulate hours of part-time work; to not provide for pre-agreement
review of AWAs especially by reference to the existing 'no disadvantage
test'; and to repeal paid rates awards and comprehensive award coverage.
The majority of the Committee therefore reaffirms the respective
recommendations made in these cases. (Paragraph 5.36)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
WORK AND FAMILY RESPONSIBILITIES
The majority of the Committee has concluded that whilst the Bill states
it will assist employees to balance their work and family responsibilities,
there is little in the actual provisions of the Bill which promotes
this.
Indeed, the majority of the Committee believes that some of the proposals
discussed in Chapter Four may create difficulties for employees seeking
to effectively balance work and family responsibilities. The Committee
notes the proposals to remove the Commission's power to regulate hours
of part-time work, to repeal the Commission's power to make equal remuneration
orders and to abolish paid rates awards and comprehensive award coverage.
The majority of the Committee therefore again reaffirms the recommendations
made respectively for each of these matters. (Paragraph 5.46)
The Australian Democrats member of the Committee supports this recommendation
but has made additional comments in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
NON-ENGLISH SPEAKING BACKGROUND EMPLOYEES
The majority of the Committee has concluded that a number of the Bill's
proposals will detrimentally affect workers of a non-English speaking
background.
In particular, the majority of the Committee is concerned that migrant
workers with poor English will have very little or no bargaining power.
They therefore need the protection of comprehensive award coverage,
reviewability of AWAs by reference to the existing 'no disadvantage
test' and no override of Federal awards by State enterprise agreements.
The majority of the Committee also believes the obligation on employer's
to consult and to take into account the interests of disadvantaged employees
are important safeguards.
The majority of the Committee therefore reaffirms the recommendations
previously made in Chapter Four concerning these matters. (Paragraph
5.55)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
YOUNG PEOPLE
The majority of the Committee has concluded that young people are generally
characterised by a significant lack of bargaining power, and therefore
will also be adversely affected by a number of the Bill's proposals.
Those mentioned above are again relevant.
The majority of the Committee again reaffirms the recommendations
previously made. (Paragraph 5.59)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Youth Employment and Junior Rates of Pay
The majority of the Committee has concluded that the proposal to retain
junior rates of pay in awards and agreements (when they would have been
abolished 22 June 1997) is, on balance, inappropriate.
Obviously the majority of the Committee is concerned about the rate
of youth unemployment. The majority of the Committee believes however
that the best way to approach this problem, without permitting the capricious
discrimination inherent in the system of aged based rates, is the Training
Wage system which has now been developed. The majority of the Committee
sees this as the first serious attempt to identify the relative competencies
of young people, and therefore allow for wage differentials that reflect
relative inexperience and maturity rather than just age.
While some employers have indicated that there remain problems in relation
to the development of this system, the majority of the Committee notes
the relative short time that this approach has been tested and the significant
progress that has been made in some areas.
Given the importance of ensuring that the issue of employment does
not simply become an excuse to continue discrimination, the majority
of the Committee feels that the development of a competency-based system
must be allowed to continue. This can only really occur in the light
of a prohibition on aged-based discrimination.
The majority of the Committee therefore recommends that the proposal
to retain junior rates of pay (especially the repeal of section 90AB)
not be implemented. (Paragraph 5.79)
The Australian Democrats member of the Committee supports these
conclusions and recommendations but has made additional recommendations
in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
EMPLOYEES IN PARTICULAR INDUSTRIES
The majority of the Committee has concluded that certain classes of
employees will be particularly affected by various proposals in the
Bill outlined in Chapter Four. The Committee notes in particular the
situation of nurses, remote area employees and aborigines.
The majority of the Committee believes the recommendations made
earlier in Chapter Four concerning the award system and agreements are
particularly important in meeting the concerns held for these groups.
(Paragraph 5.94)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
INDEPENDENT CONTRACTORS
The majority of the Committee has concluded that it is unfair to deny
independent contractors some measure of protection where, by the nature
of their activity, they are in a position analogous to the position
of employees. No evidence was received which demonstrated any real difficulties
with the existing jurisdiction of the Court to review the contracts
of independent contractors. Moreover, the majority of the Committee
is not satisfied that the provisions of the Trade Practices Act are
an adequate alternate remedy for independent contractors. Indeed, the
majority of the Committee is concerned that amendment may be needed
to ensure the Trade Practices Act does not prevent independent contractors
from engaging in collective bargaining.
The majority of the Committee therefore recommends that the proposal
to repeal the provisions protective of independent contractors (Schedule
6) should not be implemented. (Paragraph 5.104)
The Australian Democrats member of the Committee supports this analysis
but has made additional recommendations in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
SMALL BUSINESS
The Labor members of the Committee have concluded that there is no
evidence to support the view that the proposed changes to the Industrial
Relations Act will assist small business. The most comprehensive analysis
the Labor members of the Committee received was that of Professor Isaac,
which suggests that there is little need for the changes from the perspective
of small business.
Specifically, the Labor members of the Committee notes that evidence
from small business groups indicated that a significant section of small
business employers prefer the award system (though with some simplification).
The award system is believed to give small business certainty, to remove
wage costs from competition and to remove the prospect of time-consuming,
costly and possibly counter productive negotiations with their employees.
The Committee also recognises the concerns small business have expressed
about the existing unfair dismissal system. The Committee notes however
that there was no real evidence as to whether the changes proposed by
the Bill will actually meet those concerns.
The Australian Democrats member of the Committee disagrees with
this conclusion and has made recommendations in his Supplementary Report.
(Paragraph 5.122)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation. (Paragraph 5.123)
CHAPTER SIX - EMPLOYMENT, TRAINING AND SKILL FORMATION
Labor members of the Committee have concluded that any proposal to
reduce the wages and conditions to apprentices and trainees must be
rejected. Such a proposal is fundamentally unfair on apprentices and
trainees, and clearly breaches the Prime Minister's 'rock solid guarantee'
that no-one would be worse off under the Bill. In addition, the majority
of the Committee notes the evidence of employer groups, such as the
Metal Trades Industry Association, critical of such a proposal, and
its potential to deter young people from pursuing an apprenticeship
or a traineeship, to the ultimate detriment of industry.
Labor members of the Committee note that the possibility of reduced
wages and conditions for apprentices and trainees is created by the
Bill's statutory minimum conditions for certified agreements and AWAs
(Schedule 13). Labor members of the Committee have made a previous recommendation
that this schedule should not be enacted.
In order to prevent apprentices and trainees from suffering reduced
wages and conditions Labor members of the Committee again recommend
that Schedule 13 not be enacted. (Paragraph 6.32)
The Australian Democrats member of the Committee has made additional
comment in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER SEVEN - CHANGES TO REGISTERED ORGANISATIONS
'Conveniently Belong' and Section 118A
The majority of the Committee has concluded that the proposal to remove
the prohibition on the registration of new unions, or new union rules,
where the potential members can 'conveniently belong' to an existing
union is not in the best interests of employees, unions, employers or
the community as a whole.
The majority of the Committee believes the existing arrangements, including
existing section 118A, have provided an appropriate balance between
the need to provide employees with choice in union representation and
the necessity to avoid the adverse effects of union competition. In
particular, the evidence suggests that the 'conveniently belong' rule
has been applied in a way that seeks to ensure the viability of organisations
that can adequately and appropriately represent the interests of employees.
On the other hand, the rule has operated to avoid what can be the harmful
affects of union competition, including demarcation disputes and the
problems associated with employers having to deal with a multiplicity
of unions.
The majority of the Committee believes the resulting orderly industrial
relations system has benefited employees, employers and the broader
public interest.
The majority of the Committee therefore recommends that this proposal
(the repeal of Paragraph 189(1)(j) and subsection 204(4)) should not
be implemented. (Paragraph 7.34)
The Australian Democrats Member of the Committee supports these
conclusions and recommendations but has made additional recommendations
in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Enterprise Unions
The majority of the Committee has concluded that it has serious concerns
about a number of proposals that are introduced to promote enterprise
unions.
The majority of the Committee believes the proposal to reduce the minimum
membership requirement for registration to 20 is seriously flawed. Firstly,
the majority of the Committee queries whether a union which is exclusively
centred on one enterprise can, even assuming adequate funding, appropriately
represent the interests of members better than is done by existing structures.
Secondly, and more importantly, the majority of the Committee doubts
that a union with the very low resource level which will follow from
a small membership base (estimated by the ACTU to be as little as $4000)
can possibly undertake any activities representing the industrial interests
of members, let alone meet its statutory reporting and accounting requirements.
The majority of the Committee also believes that the proposal to remove
the requirement for a registered organisation to be capable of creating
an interstate industrial dispute suffers from three difficulties. First,
it permits the creation of a Federally registered union which cannot
be a party to a Federal award (thereby creating a gap in its representation
rights). Secondly, it permits the Federal registration of a union which
would traditionally, and indeed exclusively, be registered under State
law (thereby creating a conflict between Federal and State industrial
relations systems where none exists at present). Thirdly, it creates
a doubt about the constitutional validity of the registration (given
that the registration provision presumably relies on the constitutional
power relating to the prevention and settlement of interstate industrial
disputes).
Over and above these specific concerns the majority of the Committee
is also anxious that the proposals, by encouraging the creation of enterprise
unions, will lead to a multiplicity of unions, to the particular detriment
of employers and the community as a whole.
The majority of the Committee therefore recommends that the proposals
to reduce the registration requirement to 20 members (the amendment
to subsections 189(b) and (c)) and to remove the necessity for an organisation
to be capable of creating an interstate industrial dispute (the repeal
of subsections 188(1)(a) and (b)) should not be implemented. (Paragraph
s 7.47 and 7.53)
The Australian Democrats Member of the Committee supports these
conclusions and recommendations but has made additional recommendations
in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Autonomous Enterprise Branches
The majority of the Committee has concluded that the proposal to require
unions to make rules for autonomous enterprise branches suffers from
a number of significant defects.
The majority of the Committee finds great merit in the argument by
the MTIA that such AEBs may provide a haven for renegade groups to organise
themselves into legitimate groups. The consequences of this may be an
increase in industrial disputation, particularly in areas where the
renegade groups have substantial bargaining power because of the strategic
position of the employees that they represent.
Related to this, the majority of the Committee is particularly concerned
about the accountability of Autonomous Enterprise Branches. It would
seem entirely unjust for the 'parent union' to be held liable, especially
financially liable, for the activities of a branch over which it has
no control. But if recourse in relation to those activities is confined
to the branch alone then the recourse could be worthless, as the branch
is likely to have insubstantial, if any, assets. Either outcome is clearly
contrary to the broader public interest.
The majority of the Committee therefore recommends that this proposal
(proposed Division 6A of Part XI) should not be implemented. (Paragraph
7.70)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Disamalgamation
The majority of the Committee has concluded that (subject to one important
exception noted below) it does not oppose the proposals in the Bill
concerning disamalgamation. Whilst the majority of the Committee is
concerned that this may create a multiplicity of unions, the majority
of the Committee does not believe the legislature can prevent a union
which has democratically amalgamated with another from democratically
disamalgamating.
However, the majority of the Committee does question, and encourages
further consideration of, important detail outlined in the Bill. First,
the majority of the Committee believes there is an argument that all
members of the amalgamated union should vote (not just the members of
the disamalgamating union as is proposed), since all have an interest
in the outcome. Second, the majority of the Committee suggests there
is also an argument that there should be an absolute majority in favour
of disamalgamation (not just a simple majority as is proposed).
As to the exception noted, the majority of the Committee has firmly
concluded that unions should not be able to disamalgamate beyond their
pre-existing constituent unions. This means that the majority of the
Committee opposes the proposals that allow for a break up of a pre-amalgamation
union into its constituent State branches. The rationale for the disamalgamation
proposals relate only to amalgamations resulting from the legislative
changes in 1991. This proposal is inconsistent with this rationale and
should be rejected.
The majority of the Committee therefore recommends that the disamalgamation
proposals (proposed Division 7A of Part IX) should be implemented, except
for the proposal to permit unions to disamalgamate beyond their pre-amalgamation
constituent unions. (Paragraph 7.85)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Preference Arrangements
The Labor members of the Committee has concluded that the proposal
to prohibit union-preference arrangements in all circumstances is inappropriate.
The Labor members of the Committee believes preference arrangements
are often desired by employers, unions and employees in order to give
order and certainty to the conduct of industrial relations. The Labor
members of the Committee also recognises that the Commission frequently
grants preference arrangements in order to ensure that individuals who
wish to bargain collectively can do so effectively (through organisations
that might not otherwise be viable and effective). The Labor members
of the Committee can see no justification for the legislature banning
preference arrangements in these circumstances.
The Labor members of the Committee notes of course that preference
arrangements do not infringe the rights of those who are not unionists,
as subsection 122(3) of the existing Act provides that, notwithstanding
an award of preference, an employer is not required to give preference
to a unionist over a person who holds a 'conscientious objector' certificate.
The Labor members of the Committee therefore recommends that the
proposal prohibiting preference arrangements (proposed section 94) should
not be implemented, and that preference arrangements should be permitted
where the parties agree that there should be a preference arrangement
or where the Commission determines that a preference arrangement is
appropriate. (Paragraph 7.105)
The Australian Democrats member of the Committee disagrees with
these conclusions and recommendations and makes additional recommendations
in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER EIGHT - INDUSTRIAL ACTION
Secondary Boycotts (Sections 45D and 45E of the Trade Practices
Act)
The Labor members of the Committee has concluded that the proposal
to reintroduce sections 45D and 45E of the Trade Practices Act is a
retrograde step.
The Labor members of the Committee notes that provisions against secondary
boycotts presently exist in the Industrial Relations Act. The only real
allegation made against these provisions was that their complexity prevented
their use. However, the Labor members of the Committee is of the view
that Sections 162 and 163 of the Industrial Relations Act are no more
complex than are proposed sections 45D and 45E of the Trade Practices
Act. Further, there was evidence before the Labor members of the Committee
that there has been little reluctance among employers to use the current
provisions, with the number of actions commenced in the Commission at
least keeping pace with the number commenced in the Federal Court under
the previous 45D and 45E.
In the Labor members of the Committee's opinion the existing provisions
provide an appropriate balance between providing a litigation-free environment
within which conciliation may occur and permitting an employer access
to legal remedies within a reasonable time from the commencement of
industrial action.
In contrast, the Labor members of the Committee believes the proposed
provisions will permit an increased reliance on legal process and punitive
provisions, and a reduced reliance on conciliation, to resolve difficulties.
This, in the view of Labor members of the Committee, is a retrograde
step, and there would have to be a demonstrable case made before such
a step was taken. No such case was made out.
Finally, the Labor members of the Committee has also concluded that
peaceful picketing is consistent with the notions of a democratic society.
For as long as picketing is peaceful, there would seem to be no overwhelming
public interest that would justify infringing such notions. Certainly
no such case was presented to the Labor members of the Committee.
The Labor members of the Committee therefore recommend that the
proposal to reintroduce sections 45D and 45E of the Trade Practices
Act should not be implemented. (Paragraph 8.24)
The Australian Democrats member of the Committee is sympathetic
to the analysis but disagrees with the recommendation and has made additional
recommendations in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Common Law Actions
Under the Existing Division 8 of Pts V1 an action in Tort cannot be
commenced under the law of a State or Territory against a union or its
members in relation to an industrial dispute unless a certificate is
first gained from the Commission stating that the conduct is unlikely
to stop. This has the benefit of creating a 'cooling off' period during
which the Commission can examine the merits of the dispute and seek
to conciliate an outcome. The Workplace Relations Bill removes this
provision and permits immediate access to common law remedies.
The majority of the Committee recommends that this component of
the Workplace Relations Bill be revoked. (Paragraph 8.28)
The Australian Democrats Member of the Committee supports these
conclusions and recommendations but has made additional comments in
his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Industrial Action and Injunctions
The Labor members of the Committee have concluded that injunctions
should not be readily available to prevent the taking of industrial
action.
The Labor members of the Committee cannot support the use of interim
injunctions (either as an ex parte application or on a contested basis)
because these are a very blunt instrument. In effect, an interim injunction
terminates industrial action without at any time permitting the parties
to argue the merits of the dispute. As to final injunctions, the Labor
members of the Committee accept that the courts should have the capacity
to make an order stopping illegal industrial action. However, this should
only occur after the merits of the case have been completely argued
by all affected parties.
The Labor members of the Committee therefore recommend that the
provisions in the Bill which permit the granting of an injunction should
be amended to prohibit interim injunctions and to permit final injunctions
only after a full hearing on the merits. (Paragraph 8.37)
The Australian Democrats member of the Committee is sympathetic
to the analysis but disagrees with the recommendation and has made additional
recommendations in his Supplementary Report.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Damages for Industrial Action
The majority of the Committee has concluded that there should be a
maximum limit on the amount of damages that a union should be required
to pay for industrial action. There should be further consideration
of the amount of the limit, however the majority of the Committee notes
that useful guidance can be obtained from provisions to this effect
which were introduced by the Conservative Government in the United Kingdom.
The majority of the Committee is concerned that unlimited damages
have the potential to prevent an organisation from properly representing
the interests of its members. In the majority of the Committee's view,
the threat of being effectively sued out of existence provides a positive
disincentive to unions acting to advance the legitimate interests of
its members. (Paragraph 8.53)
The majority of the Committee therefore recommends that provisions
in the Bill which permit the award of damages against unions should
be amended in line with the legislation enacted by the Conservative
Government of the UK to provide maximum limits on the amount of the
award.
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Protected Action
The majority of the Committee has concluded that it endorses the major
thrust of the Government's proposals to maintain a limited right to
strike in the pursuit of bargaining. The Committee does note, however,
that it has some concerns about any attempt to unduly limit this right.
The majority of the Committee therefore recommends that the secondary
boycott provisions be redefined to exclude primary boycotts and that
protected action be made available in support of bargaining for multi-employer
agreements. (Paragraph 8.55)
The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
CHAPTER NINE - BROADER EFFECTS ON THE ECONOMY AND THE COMMUNITY
The majority of the Committee recognises that the evidence presented
and the viewpoints expressed on this issue were disparate and varied.
This makes it very difficult for the majority of the Committee to draw
a definite conclusion in this regard.
The majority of the Committee does note however that there was no conclusive
evidence to suggest that the Bill will provide a basis for better economic
performance than that which has been achieved under the existing system.
In this regard, the majority of the Committee was impressed by the site
visits conducted during these hearings, where real demonstrations exemplified
the economic efficiencies and flexibilities that could be achieved within
the existing system by a cooperative approach between employers, unions
and employees.
The majority of the Committee also notes that the existing system has
provided reasonable and appropriate protection for the living standards
of working Australians, whilst not inappropriately hindering economic
performance.
The majority of the Committee has therefore concluded that the mixed
regulation and flexibility in our current system, struck a balance between
necessary flexibility and desirable fairness which, although not perfect,
appears more appropriate than moving to a much more deregulated labour
market.
Statements to the effect 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 lev el of unemployment' by Minister Reith have
not been verified by the evidence.
The Government members of the Committee disagree with the conclusion.
(Paragraph 9.59)
CHAPTER TEN - CONSTITUTIONAL ISSUES
The majority of the Committee has concluded that it is not in a position
to definitively determine the extent to which various proposals in the
Bill are valid or otherwise. The majority of the Committee takes strong
cognisance of the advice of the Attorney-General's Department that the
Bill is constitutional, however the majority of the Committee also believes
there is substance in some of the submissions which cast doubt on the
constitutionality of the Bill.
Nevertheless, this belief does not lead the majority of the Committee
to make any recommendations which may make certain the constitutionality
of the Bill.
The Government members of the Committee disagree with the above conclusion.
(Paragraph 10.36)
CHAPTER ELEVEN - AUSTRALIA'S INTERNATIONAL STANDING
The whole Committee has concluded that it is not in a position to conclude
whether the Bill is in compliance with Australia's international obligations.
It is the Committee's view that the Government should continue to comply
with its international obligations.
The majority of the Committee, however, notes that there was strong
evidence suggesting areas of non-compliance, in particular the reintroduction
of sections 45 D & E of the Trade Practices Act, the restrictions
on union right of entry, the failure to encourage and promote collective
bargaining, the vacation by the Commonwealth of much of the field concerning
termination of employment, and the treatment of the issue of equal remuneration
for work of equal value.
Given these strong doubts, the majority of the Committee is concerned
that the Bill may be subject to challenges relating to alleged compliance
with International Conventions.
The Government members of the Committee of the Committee disagree with
the conclusion. (Paragraph 11.67)
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