CHAPTER 4
Changes To The System And Its Institutions
A. THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AWARD SYSTEM
INTRODUCTION
4.1 The issue of relative bargaining power between employees and employers
is central to any discussion about changes to the industrial relations
system and its institutions. Many witnesses touched on this issue. It
was a central thrust of submissions by union groups, who argued that
the fundamentally unequal bargaining power of employer and employee
was the reason for labour market regulation and collective action by
employees as accepted in many countries. This issue has several aspects.
4.2 Firstly, there is a recognition that, in general, employers have
stronger bargaining power than employees. Except in the most exceptional
circumstances, the competition for vacancies will generally be higher
than competition for applicants; the individual needs the job more than
the employer needs that particular individual. In addition, employers
are likely to have more experience of negotiation than employees and
greater resources to commit to it. The inequality of bargaining power
is shown clearly by situations where a contract is offered on a 'take
it or leave it' basis, without any intention on the employer's part
of entering genuine negotiation:
It is clear from our experience in Victoria that legislation designed
to promote workplace negotiations does not lead to genuine negotiation
- individual employees are powerless when dealing with large employers
in general and with government employers in particular. Negotiation
becomes a 'take it or leave it' option which is really no option at
all. [1]
4.3 Secondly, unequal bargaining power tends to affect different groups
differently, with important consequences for equity of wage outcomes.
Relative disadvantage will be greater in country areas where the labour
market is small and there is little mobility, so the consequences of
losing one's job are more serious:
You have a very limited bargaining position if you reside in an area
where there is a low industrial base, high unemployment and the majority
of the work force has low skills, and this is all perpetuated by the
seasonal nature of the labour market. [2]
4.4 Women, young people, part-time and casual employees, disabled people
and people of non-English speaking background may be particularly susceptible
to the consequences of this inequality. Here, the employee is also hampered
by being less confident in negotiation, less aware of their rights,
more likely to be in low skilled occupations and less unionised workplaces,
and therefore more open to exploitation:
I have learnt not to be afraid of my boss but out of the 80 girls
that I work with there are at least 50 girls that I would say are
unable to approach the manger to negotiate any wage agreement at all.
[3]
We have a lot of non-English background women that come to our centre
and they have expressed concerns about moving on to the individual
contracts as well. [4]
4.5 In relation to the bargaining position of women, the Australian
Council of Social Services was particularly concerned about possible
pressure on women from employers to trade away 'family-friendly' conditions.
The principal Object of the Bill includes 'assisting employees to balance
their work and family responsibilities effectively through the development
of mutually beneficial work practices with employers'. The concern is
how much the details of the Bill, in the implementation, will achieve
this object.
4.6 Young people would be particularly liable to exploitation because
of high youth unemployment.
4.7 The problems of public sector employees were also particularly
mentioned in the course of the inquiry. One aspect of this is the hierarchical
nature and the general bureaucratic inflexibility of government, ill-fitting
it for genuine individual 'negotiations'. As well, 'productivity' bargaining
is problematic in many public service areas where there is no market
involved and productivity may be hard to measure.
4.8 A further concern of workers in social service areas is that they
have codes of ethics that may conflict with their rights in bargaining
effectively. Nurses, for example, feared that individual bargaining
would bring the two into more open conflict:
Sometimes it is necessary for nurses at my hospital to insist that
patient needs are met despite the fact that these needs could be judged,
in a pure economic sense, as 'unprofitable' or 'unproductive'. An
example would be a dying patient who is alone and just needs someone
to sit with them. Individual contract, in my view, would tend to inhibit
nurses from speaking up for their patients, for fear of being discriminated
against. [5]
My experience has shown me when 'caring' women or men engage in negotiations
with 'bottom line' focussed individuals the 'carers' never experience
a win-win situation … [6]
4.9 There was particular concern about the difficulty of employees
in essential services in using legal industrial action [7]
as part of their bargaining:
I believe this proposed legislation treats nurses like workers in
the manufacturing industry. We can't just down tools and walk out
to achieve an agreement - we rely on the IRC to ensure that we have
reasonable wages. [8]
4.10 The Committee heard evidence from employees in Victoria and Western
Australia who said that their wages or conditions had been reduced because
of the recent changes to industrial relations law in those states. [9]
This was said to apply particularly once conditions other than base
pay rates are taken into account. For example:
As a nurse and a parent I cannot over-emphasise the importance of
knowing, in advance, what shifts I am rostered to work in the foreseeable
future (normally about four weeks). When the [Victorian] State government
abolished the award it took no time at all before my employer started
to let these things slip. Rosters would be available only a week in
advance then altered, at the employer's whim, such that I didn't know
what I was doing one day to the next. My child care costs rockets
and my home life suffered … [10]
4.11 The Committee was also told that there has been increasing wage
inequality in New Zealand since the deregulation of the labour market
under the Employment Contracts Act 1991. [11]
A recent study commissioned by the Australian Council of Trade Unions
and the Australian Council of Social Service supports this claim:
[In New Zealand] Employment growth has been strong since 1992 and
the overall unemployment rate has fallen sharply... On average, real
earnings have continued to decline in New Zealand throughout this
recent recovery. This decline masks a dramatic increase in the dispersion
of wages/ earnings, with higher skilled and higher paid groups achieving
wage increases and lower paid groups receiving wage reductions (Sylvia
Dixon, 'The Inter-Industry Wage Structure: 1971-94' in Labour Market
Bulletin 1995:1, New Zealand Department of Labour). [12]
4.12 On this the Department of Industrial Relations commented -
Empirical evidence suggests that 'through reducing trade union membership,
the Employment Contracts Act has led to an increase in employment
and downward pressure on wages. [13]
4.13 The ACTU/ACOSS study gives various evidence that women have been
relatively disadvantaged under the deregulated New Zealand system. [14]
Conclusions
4.14 The Committee accepts that generally the employment relationship
may be characterised by a bargaining power imbalance, employers having
stronger bargaining power than employees. If this is accepted, the industrial
relations system and its institutions must be recognised as vitally
important, for it is they that can have an important role in redressing
the imbalance and ensure that employers do not take unfair advantage
of the imbalance.
4.15 The view of the majority of the Committee is that this has become
a recurring theme; that is, the Bill makes changes which may undermine
the capacity of the system and its institutions to play this important
role. This is a central concern of the Committee. At this point the
Committee is content to simply note this concern, however it will become
apparent that the concern influences many of the specific conclusions
that are recorded subsequently.
4.16 Government members of the Committee disagreed with the above conclusion.
1. THE AWARD SYSTEM AND ITS PROTECTIONS
4.17 The provisions of the Bill affect two fundamental aspects of the
existing Federal award system:
- access to awards for employees; and
- the contents of awards benefiting employees.
Access to Awards
4.18 Access to the Federal award system is affected by the Bill in
two ways:
- obtaining a Federal award; and
- overriding of Federal awards by State enterprise agreements.
Difficulty of Obtaining a Federal Award
4.19 A number of provisions of the Bill limit the capacity of organisations
to access the Federal system and thereby obtain a Federal award on behalf
of employees. This is done as follows.
4.20 The present Act provides a prima facie right to a Federal award
for constitutionally eligible employees who do not have access to compulsory
arbitration under State law (as in Victoria). The bill removes this.
4.21 In other cases the Commission may refrain from dealing with a
case if satisfied that proceedings are not in the public interest. [15]
The Bill repeals this arrangement and provides instead that the Federal
Commission may not make a Federal award in respect of State award employees
unless satisfied that refraining would not be in the public interest.
In effect this reverses the onus of proof.
4.22 In determining the 'public interest', the Commission must give
primary consideration to the views of the employer(s) and employees
concerned and the history of the regulation of their employment relationship.
[16]
4.23 As well, the repeal of section 111(1D) removes the Commission's
power to make an interim award to provide quick access to the Federal
system where the alternative State system is inadequate.
4.24 These proposals are justified by the Government as one aspect
of its move to simplify Federal-State industrial relations.
4.25 The proposals were supported by most employer groups. They believe
that the increasing trend towards centralisation through the replacement
of State awards with Federal awards, often against the wishes of employers,
has caused problems in Federal/State relations. Thus they believe these
provisions in the Bill will allow greater harmonisation between Federal
and State systems. The submission from the South Australian Government
also expressed this view.
4.26 In the opinion of some employer groups, the industrial awards
system in Australia is highly complex. This complexity stems both from
the dual system of state and federal arrangements, which at times overlap
and conflict, and the intricacies that have evolved for the protection
of employment conditions for a very wide range of industry sectors and
types of employment. There are literally thousands of awards and many
people, both employers and employees, find the system of awards extremely
difficult to understand. [17]
4.27 Some witnesses felt that this would deny many employees the benefits
of Federal award coverage. [18]
The Victorian Trades Hall Council commented that this increases the
prospects that core public servants 'will continue to be trapped within
the State jurisdiction. [19] The
Shop, Distributive and Allied Employees Association felt that the new
provision was designed to make it as hard as possible to get Federal
coverage:
The Government has introduced a novel notion of what constitutes
the public interest for the purposes of having a Federal award made
and override the State award. section 111AAA(2) proposes that the
Commission must give primary consideration to three elements: the
views of employees; the views of the employer; and the history of
regulation of employment relationship... There have been numerous
instances in the past where unions have sought to have awards made
against several hundred or even thousands of employers at any one
time. If such a scenario operated under the proposed s111AAA it is
probable that Commission could be placed in the invidious position
of being required to survey several hundreds or even thousands of
employers to ascertain the view of each one them and to collate such
views in order to ascertain what were the views collectively of the
employers and also the Commission could be required to undertake detailed
questioning, surveying and balloting of every employee... Such an
outcome would be a practical nightmare … [20]
Conclusion
4.28 The majority of the Committee believes that the disadvantages
inherent in the proposal to make access to Federal awards more difficult
outweigh any perceived benefits, and recommends that this amendment
not proceed. The reasons for this recommendation are set out below.
4.29 First, the majority of the Committee believes that the Australian
Industrial Relations Commission is best placed to make a judgement about
whether a Federal award should or should not be made. It is not appropriate
for the Federal Parliament to seek to restrain the exercise of the Commission's
powers in this regard, especially given that the range of circumstances
that would be relevant to whether a Federal award should be granted
are many and varied.
4.30 Second, given the history of proceedings related to these issues,
it has been strongly argued that the imposition of these restrictions
will place a higher evidential and procedural burden on those that seek
Federal awards. In turn this 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. No reasons have been advanced
to justify this direction.
4.31 Third, 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 ability of the Commission to
make interim awards has been used to restore the status quo when an
employer has unilaterally changed working conditions. The loss of this
function from the Commission will also result in loss of protection
for workers. The majority of the Committee concludes that the existing
provisions of the Act (section 111(1A)) which allow for easier access
to Federal awards in the absence of a State compulsory arbitration system
is entirely justified and should be retained.
4.32 Government members of the Committee disagree with the above
conclusions and oppose the recommendation.
State Agreements to Override Federal Awards
4.33 Section 152(2) of the Bill also has an important affect on access
by employees to Federal awards. This provides that a State enterprise
agreement overrides a Federal award, whether the agreement is made before
or after the award.
4.34 The rationale for this is to provide employers and employees with
the choice of regulating their employment relationship by a Federal
award or an enterprise agreement under a State Act.
4.35 This provision was supported by various employer groups who stated
that it was beneficial to both employer and employee to permit them
to choose an appropriate jurisdiction, and an appropriate legal arrangement
for their employment relationship.
4.36 Concern was expressed about this proposal, not only by the union
movement but also by some employer groups, community groups and academic
commentators, such as the Tasmanian Chamber of Commerce and Industry
and the Victorian Employers' Chamber of Commerce and Industry (see below).
4.37 Union groups feared that employees could be pressured into moving
to State agreements which could have conditions worse than those of
their present Federal awards, or even worse conditions than the Bill's
minimum conditions for Federal agreements (depending on the details
of minimum conditions for agreements in State law). For example:
The [Victorian] individual contract system is based on minimum standards
... The five minima in Victoria certainly do not meet proposed minimum
standards for either Federal awards or the Federal agreement stream
.... Many employers will offer new positions, promotion or transfer
to existing employees simply on the basis of getting them to sign
a State employment agreement which will then over-ride the Federal
award and reduce those workers' pay and conditions ... It is not an
offence under the Victorian Employee Relations Act to intimidate or
threaten an employee into signing an individual contract and an agreement
is not void in such circumstances … [21]
4.38 Mr Edwards of the Tasmanian Chamber of Commerce and Industry accepted
that an employee should not be disadvantaged against the current Federal
award provision, and therefore said he '… would not be unhappy
if the Committee recommended to the Senate that they include a provision
in the Bill to the effect that employees not be disadvantaged by the
implementation of State workplace agreements'. [22]
Of course, inherent in this comment was a recognition that this could
indeed occur under the Bill without such an amendment.
4.39 Similarly, Mr John of the Victorian Employers' Chamber of Commerce
and Industry expressed the view that unless the Victorian Government
transferred its industrial relations jurisdiction to the Federal government
a worker under a Victorian State agreement that overrode a Federal award
or agreement could be worse off. When asked if the Prime Minister had
breached his rock solid guarantee that no worker would be worse off
under this legislation Mr John answered 'not if the situation that the
Victorian government appears to be considering, and considering actively
[that is, the transfer of industrial relations power to the Commonwealth],
in conjunction with the Commonwealth comes about'. [23]
4.40 The following exchange between Senator Sherry and Professor Sloan
is also instructive:
Senator Sherry: How does that [minimum conditions for State
agreements in some States being less than the minimum conditions of
Schedule 13 of the Bill] fit into Mr Howard's rock solid guarantee
that not one worker will be worse off as a consequence of this legislation?
Professor Sloan: It will not be a consequence of this legislation,
I suppose; it will be a consequence of them making agreements under
State systems.
Professor Sloan: I think one way around that would be to make
it a condition that agreements made under section 152 for parties
covered by Federal awards comply with Federal minimum conditions.
Professor Sloan: I am not sure I like it, I might add. [24]
4.41 Indeed, even the Department of Industrial Relations accepted that
the conditions under a Victorian enterprise agreement could be less
that those in the applicable Federal award, and that 'it is possible
for [employees] to agree to something which is inferior to the award'.
[25]
Conclusion
4.42 The majority of the Committee believes the concession made by
the Department of Industrial Relations was a proper one for it to make.
It is all too obvious that an employee can enter into an enterprise
agreement under the laws of Victoria, Western Australia and Tasmania
which contains inferior wages and conditions than the otherwise applicable
Federal award. The relevant statutory minima in each of these States
(see Appendix 5) clearly set minimum standards which are below many
award standards, or indeed do not set any minimum standard at all.
4.43 Where the majority of the Committee disagrees with the Department
in its suggestion that this result only occurs as a result of mutual
agreement. We believe this suggestion fails to appreciate the true nature
of the employment relationship, particularly that unequal bargaining
power which many employees have relative to their employer.
4.44 For new employees, section 152 of the Bill thus permits an employer
to offer as a condition of employment a State enterprise agreement with
inferior wages and conditions than those which would otherwise be applicable
under the relevant Federal award.
4.45 For existing employees, there is always the possibility of an
employer using 'persuasion' to convince an employee to opt into a State
enterprise agreement.
4.46 The majority of the Committee therefore sees the proposed section
152 as an obvious means by which the wages and conditions of large numbers
of Australians can be reduced. This is totally unacceptable particularly
given the Prime Minister's rock solid guarantee referred to above.
4.47 The majority of the Committee, therefore, does not support any
proposal that permits State agreements to undermine existing provisions
that protect Federal award wages and conditions. We also cannot support
any proposal to require State agreements to only comply only with the
minimum conditions for Federal agreements as outlined in proposed Schedule
13. While an improvement on existing provisions, the majority of the
Committee (as will be seen later) believes that the Federal minimum
conditions are profoundly inadequate protect the wages and conditions
of employees.
4.48 The majority of the Committee recommends that proposed section
152, which allows State employment agreements to override Federal awards,
should not be enacted.
4.49 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.
4.50 Government members of the Committee disagree with the above
conclusions and oppose the recommendation.
The Content of Awards
4.51 The content of awards is affected in a number of ways by the provisions
of the Bill. In particular the following matters require examination:
- the introduction of 'allowable award matters';
- the restriction of awards to minimum entitlements only; and
- abolition of paid rates awards.
Allowable Award Matters - section 89A
4.52 The effect of section 89A of the Bill is to confine the scope
of industrial disputes, and therefore the Commission's award-making
power, to 18 'allowable matters'. This will mean that enforceable award
conditions outside the 18 'allowable matters' will (after 18 months)
be removed from existing awards and will not be able to be granted in
the future by the Commission. [26]
4.53 The rationale for this proposal is that awards have become excessively
complicated, and that compliance with them has become a burden for employers.
4.54 This was supported by a number of employer groups. To them, a
most significant achievement of the legislation is the reduction of
all awards to a minimum 'safety net' of 18 core matters. As argued by
the Australian Chamber of Commerce and Industry (ACCI), this is a positive
step towards simplifying the system for employers while ensuring that
the basic needs of employees are met. [27]
While other entitlements, including over-award conditions, will become
the subject of negotiation, they will not be removed altogether. More
significantly, however, ACCI argued that confining the scope of the
basic award would actually increase the scope for varying entitlements
in agreements. [28] The MTIA expressed
the view that where award provisions are removed in accordance of the
Act, employers would make the decision about whether they were necessary
and if deemed unnecessary they would be removed.
4.55 Many submissions, including from individuals, community groups
and the union movement, fundamentally oppose this change on the basis
that once those extra entitlements or conditions outside the 18 matters
have been removed from awards, many employees will in practice have
great difficulty in bargaining for their reinstatement in enterprise
agreements.
4.56 They argued that many of these provisions for award conditions
provide essential protections for workers and that these workers could
only be worse off under the proposal.
4.57 Thus, for instance, the Shop, Distributive and Allied Employees
Association (SDA) stated that in the retail and food industries rostering
is a crucial issue. [29] Many submissions
argued that rostering is particularly important to women with child
care responsibilities. The SDA also outlined the capriciousness of limiting
awards to allowable matters when in some cases they reflect the result
of enterprise bargaining agreements processed under the current National
Wage Principles as consent awards.
4.58 The Construction, Forestry, Mining and Energy Union (CFMEU) claimed
that in the construction industry, shift work, severance pay, accident
pay, meal breaks, transport, and protective clothing were all important
aspects of the award. Similarly, in highly hazardous industries such
as coal mining, awards have evolved to recognise the importance and
necessity of occupational health and safety provisions. [30]
4.59 A number of submissions also noted that for many years the Australian
Industrial Relations Commission has played an important societal role
through the examination of industrial issues that have a broad public
dimension to them. Many of these will fall outside the 18 allowable
award matters of section 89A of the Bill, and thus could not be pursued.
4.60 Thus, as noted by the Victorian Trades Hall Council:
Important standards like the Termination, Change and Redundancy Test
Case, the Occupational Superannuation Test Case, or the Adoption Leave
Test Case, will no longer be possible if this legislation proceeds
unamended. There will be no mechanism to recognise new needs or changing
Community attitudes, or to decide the outcomes on a national basis.
For example, a test case on outworkers or homeworkers would not be
possible under the legislation. A test case on religious holidays
leave for non-Christian workers would also not be possible. [31]
44.61 Some submissions also suggested that this proposal could produce
confusion, particularly as the nexus between High Court decisions on
significant industrial relations matters and the ability of the Australian
Industrial Relations Commission to include that matter within its jurisdiction
will be broken. As argued by the Victorian Trades Hall Council:
Throughout the 1980s the High Court made important decisions, allowing
the Commission to make awards in respect [of those] issues …
The broadening of the Commission's powers to rule on a wide range
of issues has been an important protection for the workforce, particularly
as the composition of the workforce changes. … These advances
will now be reversed by this Bill. … Now, protection will be
limited to those areas in which workers are strong enough to have
the issues included in enterprise agreements, or AWAs. [32]
4.62 Interestingly, a number of employer groups picked up on these
same concerns. Mr Carter of the Australian Road Transport Industrial
Organisation succinctly stated:
In terms of schedule 5, the awards, ARTIO does not believe it is
sound policy for a government to legislate what should or should not
be the content of an award when it itself is not the direct employer.
We believe that you are setting a very dangerous precedent such that
future governments can use the legislation relating to compulsory
union membership, compulsory deduction of union fees and disclosure
of employees' personal details. Once you start a process of dictating
what you will and will not have in an award, then any government can
add anything it wants to an award.
We do not believe that it is sound to freeze awards. They have historically
been developed over a period of time. Although the process of change
is very slow, they do, in fact, take into account changes within our
industry and in society generally. We believe it is vital not to restrict
this evolutionary process. [33]
4.63 Mr Carter later added that if employers wished to continue using
the award system, they should be free 'to use it in an unfettered way'.
[34]
4.64 Mr Muir of the Queensland Chamber of Commerce and Industry also
acknowledged the possibility of detriment to employees under the proposal,
in the following exchange:
Senator Murphy: It is my understanding that, under new legislation,
after 18 months, if the parties cannot reach agreement, say, for the
inclusion of an overaward payment or other payments - be they supplementary
or otherwise - to be included in the award, the Commission cannot
arbitrate. What is your view about those circumstances?
Mr Muir: From the workers' point of view, I guess they would
see that as unfair. [35]
Conclusion
4.65 The majority of the Committee believes that reducing awards to
18 allowable matters is fundamentally flawed. This is another aspect
of denial of freedom of choice.
4.66 This is based firstly on the fact that the proposal would place
many existing entitlements outside awards and thus ensure that, without
renegotiation, the conditions of employees may be unequivocally reduced.
The extent of employee disadvantage cannot be understated, especially
given the list of existing conditions that will be stripped from awards
as a result. These include:
- aspects of occupational health and safety;
- rostering arrangements;
- meal and rest breaks;
- timing of breaks;
- study leave;
- workers compensation payment;
- travelling time allowance;
- clothing allowances, including protective clothing and safety equipment;
- excess travel and fares;
- the method of payment of wages;
- nomination of superannuation fund;
- vocational training;
- no guarantee of weekly wages for apprentices/trainees;
- trade union training leave;
- accident compensation make-up pay;
- time and wages records to be kept by employees;
- redundancy procedures in case of retrenchment;
- rostered days off for full-timers;
- right of entry;
- minimum and maximum hours for the protection of casual and part
time employees;
- preference; and
- staffing levels.
4.67 Given the Prime Minister's commitment that no Australian would
be worse off under these proposals, the majority of the Committee views
this consequence with considerable concern.
4.68 The majority of the Committee finds that the proposed process
of so-called award simplification is arbitrary and deficient. In effect
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. Not only does
this defy logic, but also experience. The implicit suggestion in the
proposal that items such as occupational health and safety, superannuation,
accident make-up pay are somehow unimportant or mere detail defies explanation.
4.69 In our view, it is far better for the Commission to be left with
a broad power to make awards provision concerning all matters that might
arise in the employment relationship. There is no rationale for a legislative
prohibition on the making of such awards in those circumstances.
4.70 Accordingly, the majority of the Committee recommends that
proposed section 89A should not be enacted.
4.71 The Australian Democrats member of the Committee agrees but
makes additional comments in his Supplementary Report.
4.72 Government members of the Committee disagree with the above
conclusions and oppose the recommendation.
Superannuation
4.73 As noted above, superannuation is not one of the 18 allowable
award matters. The Government has taken this position because it believes
that superannuation is adequately provided for through the Superannuation
Guarantee Charge Act 1992 and associated Superannuation Guarantee
(Administration) Act 1992 and, as noted by the Australian Chamber
of Commerce and Industry, there are some aspects of award-based superannuation
provisions which are inconsistent with the statutory scheme such that
employers currently face the potential for double jeopardy. [36]
In addition, it is Government policy to promote greater freedom of individual
choice of superannuation funds for employees.
4.74 However, several submissions to the Committee argued that this
was not necessarily the case and that further legislative provisions
would be needed to ensure that superannuation was adequately provided
for. The major submission in this regard came from the Association of
Superannuation Funds of Australia Limited (ASFA). [37]
This submission noted that, rather than promote a uniform national approach,
the Workplace Relations Bill, in combination with separate provisions
under State industrial relations legislatures, would actually result
in further fragmentation. The Association recommended that the Federal
Government work towards devising a unified approach to superannuation.
[38]
4.75 The second major issue addressed by ASFA was that of employee
choice. It noted that it was not sufficient to amend individual awards
to remove existing specifications of the funds that must be used. Rather
the Government would need to take further positive legislative steps
to ensure that employee choice is available. [39]
4.76 The ACTU's submission noted that the potential for casualisation
of the work-force, which would be a consequence of the reduced status
of permanent part-time work, would have an impact on superannuation
contributions because the threshold for contributions was income of
$450 per month. This would particularly disadvantage women, a matter
for some concern as it would counter the trend towards improved access
to superannuation achieved over the last decade. [40]
Conclusion
4.77 The majority of the Committee concludes that the removal of superannuation
as an award matter will substantially disadvantage a large number of
employees, particularly those on lower incomes. Accordingly, the
majority of the Committee recommends that superannuation should not
be removed as an award matter.
4.78 The whole Committee considers that this matter is of crucial importance.
The Committee had insufficient time and evidence to consider it fully.
The majority of the Committee recommends that the Government should
look further at the implications of the proposed changes for superannuation.
4.79 The Australian Democrats member of the Committee makes further
recommendations on this matter in his Supplementary Report.
4.80 Government members of the Committee disagree with the above
conclusion and oppose the recommendation.
Removal of the 'Secure, Relevant and Consistent' Requirement for Awards
4.81 The second proposal relates to amendments to those provisions
of the Act that relate to the setting of award wages and conditions.
Principally the inclusion of proposed sections 88A and 88B will have
the effect of removing the Commission's obligation to ensure that award
wages are relevant, consistent and secure. These concepts are broader
than mere "fairness", or the general requirement that the
Commission exercise its powers in equity, good conscience and the substantial
merits of the case (S. 110). In addition, the tenor of proposed section
88B is that the Commission's discretion is to be confined to the matters
listed in that provision. This contrasts with the existing provisions
which set these matters as guidelines and not prescriptions.
4.82 Proposed section 88B provides:
(1) The Commission must perform its functions under this part in
a way that furthers the objects of the Act and, in particular, the
objects of this Part.
(2) In performing those functions, the Commission must ensure that
a safety net of fair minimum wages and conditions of employment is
established and maintained, having regard to the following:
(h) the need to prevent and eliminate discrimination because of,
or for reasons including, race, colour, sex, sexual preference,
age, physical or mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion, national extraction or social
origin.
4.83 The rationale for this proposition is that awards should only
provide a minimum level of wages prescribed by the Commission so that
there is a positive incentive to bargain. It was made clear that these
proposals were clearly aimed at reducing the extent to which wage increases
are available through the Commission's processes. In other words, this
provision calls on the Commission to make lower adjustments to award
rates and conditions than would otherwise be the case under the existing
legislation.
4.84 Certainly the proposal was supported in these terms by a number
of employer groups. For example, the Australian Chamber of Commerce
and Industry commented:
There is a demonstrated need for statutory change to give greater
focus and impetus to the process of award simplification, and the
Bill will provide this.... The Government is going well beyond the
minima proposed by the private sector in Australia. If there is a
criticism to be made, it is that the Government is placing too great
an emphasis on minima and protection, and not enough on the need to
provide businesses with greater flexibility. [41]
4.85 However, concern was expressed by organisations representing employees
with little or no bargaining power, such as young people, women and
employees from non-English speaking backgrounds (these groups will also
be dealt with in much greater detail below). For example:
The major concern that has come up is the concern about the AWAs
and the impact they will have on women.... We believe that women do
come from a weaker bargaining base, and in being presented with an
individual contact many women are anxious to get that initial job,
and we have concerns that they will be prepared to sign anything rather
than looking at it carefully to see how it measures up in comparison
to other wages of similar positions, and also that they lack experience
in reading the fine print of the document of a legal or union type
.... We have a lot of non-English background women that come to our
centre and they have expressed concerns about moving on to the individual
contracts as well. [42]
For example, if one of your children,daughter or son,is going for
a job here and their friends are unemployed, because we have nearly
40 per cent youth unemployment in South Australia, what do you think
they are going to do? Obviously, they are going to sign. They are
going to be totally defenceless. How the hell would they know otherwise?
[43]
4.86 Others expressed concern for the possible economic ramifications
of the proposal. For example, the Australian Road Transport Industrial
Organisation expressed the view that maintaining a system such that
the awards will be minimum from which one will negotiate above-award
wage rates on an individual basis, will in the long run harm the national
economy and cause inflationary pressures:
We point out that when you compare the period of the 1980s during
the Accord, when we had a system of reasonably moderate wage outcomes,
with what has happened since the changes to enterprise bargaining
both before and after the election, you will see that unions are now
embarking upon a campaign of what they claim to be wage make-up or
catch-up and are clearly making demands that exceed the capacity of
the economy to pay, and in some cases,in particular, in our industry,the
capacity of productivity offsets. [44]
4.87 This dynamic could cause increased industrial disputation:
Given the spontaneous tendency for workers to compare their pay with
that of others performing similar work irrespective of claimed difference
in productivity, there is an increased risk of industrial disruption
and wage leap-frogging by bargaining groups attempting to restore
pay comparability in a robust labour market. the 1995 CRA dispute
at Weipa exemplified in microcosm the forces at work. [45]
4.88 Some witnesses felt that the Bill's encouragement to employers
to cut wages and conditions as a means of cutting unit labour costs
would be counterproductive in the longer term, since it would distract
attention from other matters which, they said, are the engine-room of
real productivity growth and international competitive advantage. For
example:
Low wage competition is not the most effective way of improving productivity.
The most effective way of improving productivity is to focus on other
aspects of our competitive edge: quality, innovation, delivery and
service. These are the areas which,in global markets, anyway,give
the greatest benefit to countries which lack the resources that we
have. Countries that have very little in the way of natural resources
have become wealthy by focusing not on low wage competition but on
developing their capacity to produce elaborately transformed manufactures,
which is the largest and fastest growing sector of world trade. [46]
4.89 More comment on the broader economic effects of the Bill is in
Chapter 9.
Conclusion
4.90 The majority of the Committee believes that the proposal to replace
existing sections 88A and 90AA with proposed sections 88A and B should
be rejected for a number of reasons.
4.91 Firstly, regardless of what the legal import of the criteria proposed
is, it would seem that the Commission is being directed to ensure that
its award wages and conditions are lower than what they would otherwise
be under the existing system. This relates both to the review of existing
awards to ensure that they comply with proposed section 88B (See items
43, 44 and 45 in the transitional provisions) and any increases that
the Commission may award as a result of reviewing the 'safety net'.
The fact that the Government fails to legislate for secure, relevant
and consistent wages and conditions, appears to suggest that wage and
condition outcomes resulting from arbitral decisions would be less than
is presently the case.
4.92 Secondly, the change of the status of existing section 88A criteria
from objects (as is presently the case) to prescriptions (as is proposed
in section 88B) means that rather than providing a guidance for the
Commission in the exercise of its powers, proposed section 88B will
restrict the Commission's power to deal with matters beyond its criteria.
This proposition is supported by the recent decision of a Full Bench
of the Australian Industrial Relations Commission in Comalco Weipa where
it was argued that the Commission lacked the jurisdiction to make the
award sought because it went beyond the existing criteria in section
90AA(2). In rejecting this submission, the Commission said:
While sections 90 and 90AA impose on the Commission obligations to
perform its functions consistent with the objects contained in both
s. 3 and Part VI of the Act, s. 90AA does not impose on the Commission
a particular view as the level of the safety net of minimum wages
and conditions necessary to underpin direct bargaining. Indeed, s.
90AA(2) requires the Commission in performing the functions to ensure
only 'so far as it can' that the system of awards provides for secure,
relevant and consistent wages and conditions of employment and has
proper regard to the interests of the parties immediately concerned
and the Australian community as a whole.
In our view, a consideration of these factors does not deprive the
Commission of its power to prevent and settle the industrial dispute
before it by arbitration. We are of the view that, as a matter of
power, the Commission could make an order setting fair and enforceable
wages and conditions of employment referable to the conditions found
to exist in these proceedings. section 99A provides for the Commission
to set fair and enforceable minimum wages and conditions of employment
that are maintained as a relevant level. Put shortly, we think there
is no jurisdictional impediment to making an award under s. 111(1)(b)
of the Act. [47]
4.93 Clearly this proposition would be substantially altered as a result
of the changes proposed.
4.94 In short, the majority of the Committee believes that it is unnecessary
to remove the requirement for award wages and conditions to be relevant,
consistent and secure. This appears to be an attempt to continue awards
but to make them less comprehensive and relevant. The majority of the
Committee cannot condone this and rejects the proposal.
4.95 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.
4.96 The Australian Democrats member of the Committee agrees with
the analysis of this part but has qualified his view in his Supplementary
Report.
4.97 The Government members of the Committee disagree with the conclusion
and oppose the recommendation.
Abolition of Paid Rates Awards
4.98 Under the Bill the Commission will no longer be empowered to make
paid rates awards. Further, in the case of existing paid rates awards,
the Commission, either after 18 months or on application, will have
to consider whether an existing paid rates award should be varied in
light of the requirements of the Act.
4.99 The introduction of this proposal is said by the Government to
be consistent with its proposition (referred to more generally above)
that awards should only provide a safety net of minimum wages. In such
a system there is no room for awards which prescribe the actual rate
of pay to be received by an employee (as is the nature of a paid rates
award). The Government also says that in many cases paid rates awards
are not in any case performing this function because enterprise or workplace
bargaining has taken place which is providing wage rates above those
prescribed in the applicable paid rates award.
4.100 This proposal was supported most employer groups. They argued
that as a practical matter paid rates were no longer playing their intended
role and therefore should be removed from the system.
4.101 A significant number of organisations and individuals, however,
opposed this proposal.
4.102 Mr Muir of the Queensland Chamber of Commerce frankly stated
that he '… did not necessarily advocate [paid rates awards] abandonment
… I am not entirely certain as to why this particular issue is
being pushed'. [48]
4.103 A number of unions whose members will be most affected by the
removal of paid rates awards made their concerns about this change central
to their submissions.
4.104 The Australian Nurses Federation and the Australian Education
Union expressed a fear on behalf of their members that this proposal
could mean reducing the conditions in the award, and that this will
result in substantial real wage reductions for many workers. [49]
The reasons for this were argued as follows:
- although there is no requirement for rates of pay in paid rates
awards to be reduced in dollar terms, the Commission is prohibited
from varying the award on other than a minimum rates basis;
- over time, paid rates awards will lose their relevance because of
difficulties in adjusting rates of pay; the Commission will be unable
to adjust rates in line with factors such as market rates, which currently
are applicable; and
- if safety net increases are awarded on the basis of minimum rates,
workers under paid rates will receive no increases whatsoever until
their dollar rate equates to equivalent minimum rates.
4.105 Abolition of paid rates awards will also have the effect of lowering
the safety net for the purpose of determining the minimum conditions
underpinning enterprise agreements in a number of industries, including
the private sector.
4.106 Paid rates awards are particularly important for employees in
the public sector. The ACTU believes that those most disadvantaged by
the abolition of paid rates awards are government employees, such as
nurses, teachers, community workers and emergency service workers who,
because their employers are dependent on government funding, are not
necessarily in a position to achieve increases through enterprise bargaining.
[50] Because many are in public
service industries which do not make a profit they cannot increase the
cost of their service.
4.107 As well, in many areas of public service 'productivity' bargaining
is problematic because there is no market and hence the criteria of
productivity may be hard to define.
Conclusion
4.108 The majority of the Committee considers that the evidence of
those opposing the repeal of paid rates awards was compelling.
4.109 The proposal fails to appreciate that many benefits are afforded
to employees (particularly public sector employees such as nurses and
teachers) as a result of paid rates coverage.
4.110 Firstly, where a paid rates award continues to provide the actual
wage to be received by an employee the paid rates award ensures that
those wages are relevant, consistent and secure, that they are enforceable
and that they will be adjusted over time. This contrasts with the plight
of employees who nominally have the right to negotiate changes to agreements,
where in fact the employer refuses to negotiate. For example, the State
Public Services Federation of Victoria described the problems of Victorian
public sector employees on contracts when the Victorian Government refused
to honour a clause in the contract that both parties would agree to
negotiate changes to the contract. The Court found that under contract
law such a clause is unenforceable, which left the employees with no
remedy. [51]
4.111 Secondly, where there has been bargaining over and above the
paid rates award (that is, where opposition to bargaining is not apparent),
there appears to be great value in having paid rates awards providing
a comprehensive benchmark for negotiations.
4.112 Lastly, the abolition of paid rates awards is at odds with the
Government's claims that their changes will provide greater freedom
of choice about the type of industrial instrument which best suits employees
and employers. Where both parties agree that a paid rates award is best
suited to the particular enterprise or occupation, why shouldn't they
have the right to have one?
4.113 The majority of the Committee believes that without these benefits
which paid rates awards provide employees such as nurses, teachers and
other public sector workers will be worse off. The majority of the Committee
views with considerable concern this potential breach of the Prime Minister's
'rock solid guarantee' that no worker will be worse off.
4.114 For these reasons the majority of the Committee recommends
that the Commission should continue to have the power to make and administer
a paid rates award consistent with the existing provisions.
4.115 Government members of the Committee disagree with the above
conclusions and oppose the recommendation.
2. THE PREVENTION AND SETTLEMENT OF INDUSTRIAL DISPUTES
4.116 The Commission's capacity to prevent and settle industrial disputes
is affected by the Bill in three principle ways:
- the restriction of the Commission's award-jurisdiction to 'allowable
matters';
- the removal of the Commission's capacity to make paid rates awards;
and
- the introduction of 'last resort' arbitration.
Limitation of Arbitration to Allowable Award Matters (section 89A)
4.117 Section 89A of the Bill, in confining the powers of the Australian
Industrial Relations Commission to 18 'allowable matters', also has
the effect of removing the capacity of Commission to prevent and settle
industrial disputes by arbitration in relation to non-allowable award
matters.
4.118 Whilst this does not appear to be the rationale for the introduction
of section 89A (discussed above), the Government must be aware that
it is a necessary consequence.
4.199 There was concern expressed about this consequence. A number
of employer groups appeared to accept that one outcome could be greater
industrial disputation. For example, Mr Boland of the Metal Trades Industry
Association accepted that in the short term a consequence could be ongoing
disputation because there is no third party to take the matter to. [52]
Similarly, Mr Geronimos, speaking on behalf of the Western Australian
Council of Retailers, suggested that if there is a desire by both employer
and employee to refer any matter in dispute to the Commission that option
should be available to them. [53]
4.120 The Victorian Trades Hall Council noted in its submission that
similar provisions in Victoria have led to a number of undesirable effects,
the two most significant of which were the prolonging of serious industrial
disputes and the inability of employees who were in dispute with their
employer to have access to an independent and impartial arbitrator.
[54]
4.121 The ACTU believes that it is in the public interest for the Commission
to be able to prevent and settle industrial disputes quickly and in
a manner that is cost effective. [55]
4.122 The ACTU argued in its submission that proposed restrictions
on 'the Commission's ability to arbitrate in most circumstances [that
is, on matters outside the 18 allowable award matters] will mean that
there will be few, if any, means available of resolving industrial disputes'.
[56] Restricting the Commission's
jurisdiction to only the 18 allowable award matters means that the Commission
will not be able to deal with any dispute outside those areas. Such
disputes can and do happen, as was evidenced by the Weipa dispute which
involved discrimination against workers who sought to engage in collective
bargaining. [57] Indeed, since awards
are made in settlement of industrial disputes, the very fact that most
awards include conditions outside the 18 matters arguably shows the
likelihood that disputation on these other matters will occur.
4.123 The submission from Maurice Blackburn & Company Industrial
Law section noted that the Commission 'has traditionally had a highly
successful role of preventing and settling disputes' and that 'matters
which have traditionally been regarded as beyond the proper scope of
the Commission to deal with have nevertheless eventually been dealt
with by the Commission because of the need to resolve industrial disputation'.
[58]
Conclusion
4.124 The majority of the Committee is extremely concerned that this
proposal does not sufficiently consider the impact of not speedily and
adequately settling industrial disputes regardless of their subject
matter. This involves considerable detriment to the community as a whole
in addition to the specific parties to an industrial dispute.
4.125 While the proponents of this proposal emphasise the availability
of a voluntary arbitration power, this ignores the importance of an
enforceable arbitral function. Every conciliation takes place in the
shadow of arbitration, which has the effect of focussing the minds of
the parties to come to an amicable settlement in conciliation.
4.126 On balance, the majority of the Committee accepts that this is
another reason for rejecting the restriction of the Commission's compulsory
arbitral functions to just 18 allowable matters.
4.127 The Labor members of the Committee therefore recommend that,
for this reason also, proposed section 89A should not be enacted.
4.128 The Australian Democrats member of the Committee agrees with
this analysis but has additional comments in his Supplementary Report.
4.129 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
Industrial Disputes and Paid Rates Awards
4.130 The Government's proposals to abolish paid rates awards also
has another affect - it precludes the Commission from preventing and
settling industrial disputes by creating a paid rates award.
4.131 Whilst this does not appear to be the rationale for the abolition
of paid rates awards (discussed above), the Government must be aware
that it is a necessary consequence.
4.132 A number of organisations and individuals expressed concern about
this reduction in Commission power.
4.133 The ACTU argued that the removal of the Commission's power to
make paid rates awards would ultimately result in an increase in industrial
unrest. [59] The Australian Nursing
Federation and the Australian Education Union were other groups, representing
important sectors of employment reliant on paid rates awards, who were
particularly concerned about abolishing them. [60]
For example -
These proposed changes to the industrial landscape completely misunderstand
the purpose and structure of nursing awards and the health system. As
a result there is no recognition of the impact on the provision of quality
nursing care because it is seen a factory floor not as human service
provision. In the health sector the ramifications of these changes will
be profound... The consequences will inevitably lead to prolonged and
bitter industrial disputes. [61]
Conclusion
4.134 The majority of the Committee believes the proposal to abolish
paid rates awards fails to recognise the reason why paid rates awards
were created and have been maintained over the past 20 years.
4.135 It is no accident that paid rates awards cover areas sensitive
to public interest considerations (such as nursing, teaching, emergency
services, public service) or where market conditions mean that bargaining
can be destructive rather than constructive (for instance in high capital
intensive industries such as oil or airlines). The effect of the existing
provisions is to allow the Commission to intervene in industrial disputes
of this nature and provide an ordered and socially responsible resolution
of potential or existing disputes.
4.136 The majority of the Committee regards this function as vital
in the public interest and the parties immediately concerned, and cannot
support the removal of this function from the Commission.
4.137 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.
4.138 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
Arbitration to Become a 'Last Resort'
4.139 Section 89 of the Act sets out the general functions of the Australian
Industrial Relations Commission as 'to prevent and settle industrial
disputes so far as possible by conciliation and, where necessary, by
arbitration.' The Bill changes this to 'to prevent and settle industrial
disputes so far as possible by conciliation and, as a last resort and
within the limits specified by this Act, by arbitration.' The effect
of this amendment is to ensure that the Commission cannot arbitrate
in relation to allowable matters unless as a last resort.
4.140 The Government sees benefits in this proposal on the basis that
reduction in emphasis on arbitration (and on the capacity for parties
to access arbitration) will encourage the parties to engage in enterprise
bargaining. The Government says this will have benefits that have been
previously discussed.
4.141 This proposal was supported by employer groups who share the
Government's view about the desirability of enterprise bargaining.
4.142 However, the proposal was opposed in a number of submissions.
Concern was expressed that the reduction in the Commission's role to
one of 'last resort' will remove its capacity to intervene early in
a dispute. For example, the ACTU argues that this will mean disputes
that might otherwise have been resolved through well-established Commission
procedures will escalate into a 'trial of strength between the parties'.
[62] The Ethnic Communities Council
of Victoria feared that the need to wait till the 'last resort' was
proved could lead to delays:
Mr Borg: It says 'as a last resort'. That is what gives us
difficulty, basically. It is also a matter of how long it will take
before one decides it is a last resort and it requires a determination.
Senator Crane: Conciliation comes first. With all due respect,
you are putting the wrong emphasis on it. The bill says that the emphasis
must be on conciliation.
Mr Borg: What has concerned a lot of people is the fact that
there could be quite a bit of time between conciliation and the final
resolution of a matter. [63]
Conclusion
4.143 The existing system presently allows for arbitral functions only
to be exercised where there is no likelihood of a conciliated result
(section 100(1)). The Australian Industrial Relations Commission, in
the Third Safety Net Adjustment and section 150A Review (October 1995)
decision, reinforced this point where it said:
The safety net adjustment will not be awarded in respect of a particular
enterprise where the union is not bargaining in food faith. Further,
there must be no likelihood that, within a reasonable period, further
conciliation or negotiation will result in an agreement covering the
employees concerned. [64]
4.144 No evidence was put to the Committee which indicated that the
Commission exercised its arbitral powers in a way which is inconsistent
with the promotion of agreements and bargaining. There seems to be no
need for this proposal.
4.145 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, given that this criterion
is more than likely to lead to significant argument about whether the
'last resort' has been reached.
4.146 The Labor members of the Committee therefore recommend that
this proposal (especially the amendment of paragraph 89(a)(ii)) should
not be implemented.
4.147 The Australian Democrat member of the Committee agrees with
the analysis but has additional comments in his Supplementary Report.
4.148 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
4.149 A further Government proposal restricts access to arbitration
after a protected bargaining period has been terminated by the Commission
because it is posing a threat to public safety or heath or to the economy.
The proposal prevents the Commission from immediately arbitrating and
requires conciliation to occur first.
4.150 The Committee believes this is an impractical proposal. 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 Committee believes the Commission must not be prevented
from arbitrating to protect the public interest.
4.151 The majority of the Committee therefore recommends that this
proposal (proposed Section 170MX) should not be implemented.
4.152 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
Footnotes
[1] Submission No. 199, pp. 391, D. Radford.
[2] Evidence, p. E 536, Kenneth Carr (Sunraysia
Trades & Labour Council).
[3] Submission No. 62, p. 142, R. Groves.
[4] Evidence, p. E 281, B. Ridgeway (Working
Women's Centre Tasmania).
[5] Submission No. 114, p. 238, D. O'Callaghan.
[6] Submission No. 138, p. 268, T. Cluning.
[7] Industrial action during a bargaining
period is allowed both by the present Act and by the Bill, with some
limitations for essential services. Act s170PGff, Bill s170MLff.
[8] Submission No. 121, p. 246, M. Navin.
[9] Employee Relations Act 1992 (Vic),
Minimum Conditions of Employment Act 1993 (WA), Workplace
Agreements Act 1993 (WA)
[10] Submission No. 107, p. 227, J. Kilcullen.
[11] For example, Evidence p. 627, Dr R.
Green.
[12] Australian Council of Trade Unions and
Australian Council of Social Service, Report of the Study Program
on Structural Adjustment and Social Change: Stage 1: New Zealand,
1996, p17.
[13] Submission No. 1016, p. 109, Department
of Industrial Relations, quoting an OECD economic survey of New Zealand,
June 1996.
[14] R. Harbridge and M. Street, New Zealand
Journal of Industrial Relations 20(1)24, quoted in Australian Council
of Trade Unions and Australian Council of Social Service, Report
of the Study Program on Structural Adjustment and Social Change: Stage
1: New Zealand, 1996, Appendix 9.
[15] Industrial Relations Act 1988, sections
111(1)(g), 111(1A), 111(1G).
[16] Bill, schedule 5, item 20, section 111AAA.
[17] For example, Evidence p. E 1369ff, B.
McCarthy (Chamber of Commerce and Industry of Western Australia).
[18] Submission No. 1017, p. 92, Australian
Council of Trade Unions.
[19] Submission No. 1018, p. 36, Victorian
trades Hall Council.
[20] Submission No. 367, pp. 64-65, Shop,
Distributive and Allied Employees Association.
[21] Submission No. 1018, p. 43, Victorian
Trades Hall Council.
[22] Evidence, p. E 311, T. Edwards (Tasmanian
Chamber of Commerce & Industry).
[23] Evidence, p. E 2018, G. John (Victorian
Employers' Chamber of Commerce and Industry).
[24] Evidence, p. E 1774, Professor J. Sloan.
[25] Evidence, p. E 31, R. Stewart-Crompton
(Department of Industrial Relations).
[26] An exception is the situation where
the Commission terminates a bargaining period (meaning that industrial
action is no longer protected) for reasons of public safety etc. In
this case the Commission can arbitrate on all disputed matters without
limitation to the 18 allowable award matters, and the Commission's resulting
order has effect as though it was an award. Bill, Schedule 9, section
s 170MX,170MY.
[27] Submission No. 905, p. 31-32, Australian
Chamber of Commerce and Industry.
[28] Submission No. 905, p. 27, Australian
Chamber of Commerce and Industry.
[29] Submission No. 367, p. 71, Shop, Distributive
and Allied Employees Association.
[30] For example, Submission No's 437,529,575,774,1001,1249,1251,1290.
[31] Submission No. 1018, p.38, Victorian
Trades Hall Council.
[32] ibid.
[33] Evidence, p. E 773, M. Carter (Australian
Road Transport Industrial Organization).
[34] Evidence, p. E 776, M. Carter (Australian
Road Transport Industrial Organization).
[35] Evidence, p. E 1022, G. Muir (Queensland
Chamber of Commerce and Industry).
[36] Submission No. 905, pp.33-34, Australian
Chamber of Commerce and Industry.
[37] Submission No. 1291, ASFA; Evidence
pp. 959-971.
[38] Submission No. 1291, p.3, ASFA.
[39] ibid.
[40] Submission No. 1017, p. 56, Australian
Council of Trade Unions.
[41] Submission No. 905, p. 32-33, Australian
Chamber of Commerce and Industry.
[42] Evidence, p. E 281, B. Ridgeway (Working
Women's Centre, Tasmania).
[43] Evidence, p. 1718, G Walsh (Community
and Public Sector Union, PSA, South Australian Branch).
[44] Evidence, p. E 774, M. Carter (Australian
Road Transport Industrial Organization).
[45] Green R., 'Productivity: Current Trends
and Prospects', ACIRRT working paper no. 40, University of Sydney,
April 1996, p29.
[46] Evidence, p. E 633, Dr R. Green.
[47] Australian Manufacturing Workers'
Union v Alcoa of Australia Ltd & others, Australian Industrial
Relations Commission decision M8600, 23/1/1996; Australian Industrial
Law Review (AILR) 3-252,253.
[48] Evidence, p. E 1022, G. Muir.
[49] Submission No. 342, p. 6, Australian
Nursing Federation; Submission No. 568, p. 9, Australian Education Union.
[50] Submission No. 1017, p. 11, Australian
Council of Trade Unions.
[51] Evidence, p. E 208, K. Batt (State Public
Services Federation, Victoria).
[52] Evidence, p. E 796, R. Boland (Metal
Trades Industry Association).
[53] Evidence, p. E 1396, N. Geronimos (WA
Council of Retail Associations).
[54] Submission No. 1018, p. 37, Victorian
Trades Hall Council.
[55] Submission No. 1017, p. 3, Australian
Council of Trade Unions.
[56] Submission No. 1017, overview p. 2,
Australian Council of Trade Unions.
[57] Submission No. 1017, p. 4, Australian
Council of Trade Unions.
[58] Submission No. 1188, p. 5, Maurice Blackburn
& Company.
[59] Submission No. 1017, p. 12, Australian
Council of Trade Unions.
[60] Submission No. 342, p. 4-5, Australian
Nursing Federation; Submission No. 568, p. 8-9, Australian Education
Union.
[61] Submission No. 342, p. 4-5, Australian
Nursing Federation.
[62] Evidence, p. E 42, T. Pallas (Australian
Council of Trade Unions).
[63] Evidence p. E 233, V. Borg (Ethnic Communities
Council of Victoria).
[64] Australian Industrial Law Review (AILR)
3-195