Chapter 6 - Balance and bargaining
‘...all is fair in love and war...’
- Rio Tinto
decision, AIRC, Construction, Forestry, Mining and Energy Union
and Others and Coal & Allied Operations Pty Ltd, Print R9735, 7 October
1999
Introduction
6.1
A significant proportion of the evidence put
before the Committee related to the impact that the 1996 Act, and the potential
impacts of the provisions contained in the 1999 Bill, on the general balance
within the industrial relations system and the capacity for effective bargaining
to take place. Unions, academics, and individual citizens all commented that
there appeared to have been a significant shift in the balance and bargaining
positions in the workplace toward the interests of employers as a result of the
1996 amendments. It was generally feared that some of the amendments in the
current Bill would make this situation worse. In this context it was not
surprising that employer groups believed that the changes had been beneficial
and were supportive of many of the current Bill’s amendments.
6.2
At the outset Labor Senators make the point
that, of all the issues discussed below, the evidence from Victoria provides
the extreme example of how bargaining possibilities have been limited by the
Coalition’s industrial relations agenda. The plight of Victorian worker is
discussed in detail in Chapter 10.
Powers of the AIRC, AWAs and Certified Agreements
6.3
In the area of agreement making, changes to the
role of the Commission, some provisions relating to certified agreements and in
particular the non-union stream of certified agreements, and the introduction
of AWAs have all impacted negatively on the bargaining position of workers and
unions.
6.4
As discussed earlier in the report, the WR Act
significantly changed the focus of the Australian Industrial Relations
Commission, in particular by limiting its arbitral powers. This has removed
from employees and unions an important component of their bargaining power.
6.5
There are a number of issues which were raised
with the Committee in relation to AWAs and their impact on the balance and
bargaining position of employees. Of particular note were concerns raised
about the usefulness of the provisions enabling employees to nominate a
bargaining agent. The Committee heard that while employees could nominate the
union as a bargaining agent for the purpose of negotiating an AWA, the
provisions were not strong enough to ensure that the union could have any
significant input to the process.[1]
6.6
The evidence presented before the Committee also
suggests that AWAs are being picked up in the low income sector as well as for
people on higher income, for which they were originally intended. This raises
concerns about the ability of those people in the lower income sectors and
their ability to bargain over their employment conditions. The Committee heard
that many of the workers affected are women, persons from non-English speaking
backgrounds or part-time/casual workers. These workers were less likely to be
in a position to challenge the employers proposals.
6.7
Furthermore, Labor Senators note that the Bill
contains provisions which would remove the ability of persons negotiating AWAs
to take protected industrial action. Labor Senators believe that the
infrequent use of these provisions is no justification for its removal. All it
amounts to is a further reduction in the mechanisms available to employees to
balance their bargaining position with that of employers.
6.8
Award simplification has reduced the discretion
of the Commission to include in awards those matters which it considers
appropriate. Under the WR Act, if an award contains an non-allowable matter,
it must be removed. For employees dependent on awards to define their terms
and conditions this process seriously eroded their ability to bargain as they could
no longer argue in the Commission for certain conditions to be included in the
award.
6.9
Award simplification was also an issue for
employees on certified agreements. The Australian Nuclear Science and
Technology Organisation submitted to the Committee that through award
simplification, the starting blocks for negotiation had been moved backward.
In relation to the removal of incremental advancement from their award, they
state:
...that removal has alerted staff to the greater difficulties they
face when they have to negotiate in the next certified Agreement. In
particular, their confidence in their ability to obtain a fair outcome in the
next Certified Agreement is severely damaged.[2]
Conclusion
6.10
Labor Senators are convinced that the changes
implemented with the 1996 legislation with respect to the functions of the
Australian Industrial Relations Commission, agreement making and award
simplification have had a serious and disproportionate impact on some sectors
of the workforce. These changes were introduced on the misguided belief that
employees would be able to bargain effectively with employers. The evidence
presented to this Committee clearly indicates that this is no always possible
and employers have been able to exploit the legislative provisions to the their
advantage.
6.11
Labor Senators
recommend that while a system
of workplace-based collective bargaining should be retained, alternative
options for workers to maintain and achieve decent wages and conditions should
be as readily available through the award system, and through enterprise or
industry-based arrangements.
Impact on registered organisations
6.12
During the consideration of the Workplace
Relations and Other Legislation Amendment Bill 1996, Labor and Australian
Democrat Senators raised a number of concerns about the impact of the proposals
on the ability of unions to organise their activities and effectively represent
their members.
6.13
The concerns raised at the time related to
provisions which would:
- encourage the creation of small single enterprise unions;
- abolish the conveniently belong restrictions on registration;
- give greater priority to employers’ interests in determining
representational rights;
- allow for the disamalgamation of unions;
- change requirements relating to right of entry; and
- abolish union ‘preference’.[3]
6.14
It was argued that if enacted, these provisions
would substantially distort the balance in the workplace between the interests
of employers and employees in favour of employers. Following negotiations with
the Australian Democrats, some of the Bill’s proposals were watered down,
however, the general thrust of the provisions became enshrined in legislation.
6.15
During the course of the current inquiry the
Committee it became quite clear that the operation of the Workplace
Relations Act 1996 had impinged on registered organisations both physically
and financially. The areas that were particularly highlighted as affecting
employee organisations were: right of entry, limits to protected industrial
action and the arbitral powers of the Commission, abolition of union
preference, award simplification, and increased sanctions against available to
employers. Dr David Peetz submitted to the Committee that:
The object of the Act may be to provide a framework for
cooperative workplace relations, but the purpose is to weaken unions. The
strategy underpinning the Act involves a number of elements: undermining the
membership base of unions through removing union preference; making it easier
for employers to resist unionism and decollectivise employment relations;
occupying unions’ time and resources in defending ‘freedom of association’
actions; encouraging fragmentation through disamalgamation and the
establishment of enterprise unions; diverting union resources to the defence of
numerous long-standing award conditions that have become ‘non-allowable’;
threatening the financial viability of unions by opening up large areas where
employers can seek damages and fines against union actions.[4]
6.16
The WR Act has restricted the operations of
employee organisations in a number of ways, the most obvious of which were the
changes to right of entry provisions. These changes included obtaining
permits, providing advance notice to employers and the removal of right of
entry as an allowable award matter. As argued in more detail below, the WR Act
strengthened the requirements surrounding the right of unions to enter
workplaces to meet with and recruit new members and to inspect time and wages
records. The Australian Council of Trade Unions submitted that where employees
could not easily access unions free of intimidation then they were unlikely to
do so.[5]
6.17
Financial issues were raised with the Committee
on a number of occasions. Many unions claimed that under the 1996 legislation
a large volume of resources were being directed into legal costs. This was the
result of both the reduced power of the Commission to settle disputes and the
increase in available legal sanctions which could be levied on unions. In so
doing, the capacity of unions to provide services to their members is
substantially reduced.
6.18
On the issue of sanctions it was also noted that
the provision of the WR Act made it very easy for employers to initiate
sanctions against employers but in terms of unions bringing action against
employers for breach of agreement the process would take much longer. One
could also question the balance in the levels of penalties imposed on unions
and employers. In a paper by Margaret Lee and David Peetz, they identify that
if unions breach the secondary boycott provisions under the Trade Practices
Act 1974 which were reintroduced as part of the WROLA Bill, penalties range
from $750,000 to $10 million. On the other hand, sanctions on employers for
breach of an award is a once off $5000 and for an agreement $10,000 and then
$5,000 per day. They argue that these penalties are too low to prevent
employers breaking the law, and pursuing them is too difficult and costly.[6]
6.19
A similar argument was presented to the
Committee by the Mining and Energy Division of the CFMEU:
The other aspect of breaches
of awards and agreements is that you can go straight to the Federal Court, and
we have done that a number of times. I can tell you from experience that that
takes six to 12 months to prosecute a breach. That is what we face. However, if
we breach an order, a return to work order or something like that, they have us
in court within 24 hours. There seems to be rules for employers and rules for
others.[7]
6.20
The inability to bargain effectively under the
WR Act is also highlighted in case studies that were presented to the Committee
of intractable industrial disputes. The Australasian Meat Industry Employees
Union informed the Committee of a situation where employees had been locked out
of the workplace for 8 months. The situation revolved around negotiation for a
new agreement where the employer was seeking wage cuts in the order of 10-17½
per cent. When the union refused to accept the terms of the proposal the
employer called off negotiations and two months later issued notice of a lock
out. The union was unsuccessful in its attempts to end the lockout:
When the first lockout
notice was served, the union sought an injunction in the Federal Court. The
union argued that, because the company had not genuinely tried to reach
agreement pursuant to the act, O’Connors ought to be prevented from proceeding
with the lockout. It was submitted that O’Connors had made no attempt to
negotiate since early January and that the approach that the company had taken
to those sessions that occurred in December 1998 and January of this year was
farcical.
The union’s application was
rejected by the Federal Court. It would seem that basically all a company has
to do to be able to lock its workers out under the Workplace Relations Act is
to make any claim—in this case, 10 per cent and 17½ per cent wage cuts—then say
that negotiations are deadlocked when the claim is refused, and bingo!
Employers can with impunity lock out their workers and refuse to pay them any
remuneration for ever.
6.21
It appears that in these situations where the
Commission has little power to terminate a dispute and arbitrate a decision,
employers have the upper hand in the negotiating process.[8]
6.22
This also raises the issue of the requirement,
or lack thereof, under the WR Act to bargain in good faith. It is the view of
Labor Senators that the lack of any provisions requiring parties to a dispute
to bargain in good faith has resulted in an antagonistic environment
characterised by a ‘survival of the fittest’ mentality. This view was
supported by Victorian branch of the CPSU who stated that:
Where there
is no commission that has the power to settle a dispute in a timely,
cost-efficient manner, you are
denying the rights of individuals to collectively bargain. The best intent of
the Senate in inserting the section 170MX provisions has been thwarted by an
employer intent on not negotiating in good faith. The removal of the good faith
bargaining provisions from the legislation has allowed the commission to sit
back and see who wins in the fight on the ground.[9]
6.23
There is some evidence of these effects in the
data on the nature of industrial strikes. This data indicates that:
The introduction in the Workplace Relations Act has seen
reductions in disputes over wages and several other causes (reflecting a
continuation of trends under enterprise bargaining and the general reduction in
the power of unions) but these have been partly offset by an increase in
disputes over managerial policy (perhaps reflecting increased employer
assertiveness under the Workplace Relations Act).[10]
6.24
Labor Senators agree with the views expressed
during this inquiry that the bargaining system in Australia could be improved
by reintroducing provisions facilitating bargaining in good faith.[11]
6.25
Overall, it is clear that in the vigorous
pursuit for greater flexibility and devolved decision making, the latest round
of industrial relations reforms have failed to address the consequent shift in
the balance of power between employers and employees. The submission from Dr
David Peetz describes how the industrial relations framework in Australia has
progressed from one based on arbitration to one based on bargaining. The
submission also contrasts the two model and the relative benefits of each. Dr
Peetz argues that a bargaining model of industrial relations is not
inconsistent with providing workplace justice, but in our transition from an
arbitral system, while we may have successfully increased enterprise bargaining
and reduced reliance on the Commission to settle disputes, many of the workplace
justice components have been lost.[12]
Conclusion
6.26
Registered organisations have played a pivotal
role in Australian labour market history, providing a means by which employees
are able to act collectively to counter the inherent imbalance in the bargaining
position between employers and employees. The evidence presented to the
Committee highlights how the WR Act has restricted the influence of unions in
the workplace. In so doing, there has been a pronounced shift in the balance
of the industrial relations system toward employers.
Labor Senators recommend that:
- all parties be required to conduct negotiations in good faith;
and
- in cases where employees have provided a clear indication of
the type of agreement to be adopted, employers be required to negotiate in good
faith to conclude an agreement of that type.
The Issue of Choice
6.27
The introduction of a greater level of choice
was a central component of the Government’s rationale for introducing the 1996
legislation as emphasised in the following exert from the Ministerial
discussion paper on flexibilities in agreement making:
Choosing what sort or combination of employee agreements to use
and how they are best developed should be based on a strategy of developing and
maintaining employee trust and fostering direct employer/employee
communication. It will be influenced by the history of employment relations at
the workplace, for example, whether there is a well developed union delegate
structure, the history of direct communication between the employer and employees
and the desires of employees.[13]
6.28
An issue of major concern running through many
of the submissions was, however that the legislation did not always achieve
genuine choice over the type of agreement selected. Many of the employees and
unions provided evidence that if there was any choice at all, it was the choice
of the employer. Some of these cases have already been canvassed in discussion
on the Office of the Employment Advocate. The issue, however, is broader than
whether a collective, rather than an individual agreement, is offered to
staff. Of contention is the ability for employers to refuse to negotiate with
a union for an agreement to be certified under section 170LJ of the Act and
only offer an agreement to be certified under section 170LK regardless of the
preference of the staff involved.
6.29
Labor Senators note that considerable evidence
was provided by the Community and Public Sector Union indicating that
Commonwealth and Victorian Government agencies determined with little if any
consultation with their staff the form of agreement to be put in place. Such
action gave rise to the claim that both governments had breached section 3 (c)
of the WR Act. Labor Senators conclude that both Governments have ignored the
issue of choice for employees and thus breached the spirit of the Act.
6.30
The actions of the Department of Employment,
Workplace Relations and Small Business came under particular scrutiny. The
senior departmental office, Ms Lynn Tacey, in answer to a question by Senator
Carr as to whether the Department had refused to conduct a ballot of staff to
determine the type of agreement, was informed that no decision had been taken
and the issue was under discussion.[14]
Three weeks later evidence providing a contrary view of the situation was presented
by Ms Wendy Caird, the National Secretary of the CPSU. Ms Caird stated:
The Secretary of the department was absolutely insistent that it
had to be a non-union agreement.[15]
6.31
The argument that choice of agreement is in fact
at best only limited under the WR Act and certainly more in favour of the
employer than the employee, puts into question the Government Senators comments
in the Majority report for this inquiry that increased choice in relation to
agreements has been beneficial for industrial democracy.
6.32
Labor Senators are disappointed that industry
democracy received such a shallow interpretation in the majority report. Labor
Senators note the much broader treatment offered on the subject in the
submission by Dr David Peetz. He argues that unlike most European countries
there is no legal provision in Australia for corporate industrial democracy,
and that industrial tribunals and unions have been the mechanism by which
managerial prerogative has been tempered and employees given a voice in the
workplace. His concern is that with the decline in the support base of unions
and the perceived downgrading of our industrial tribunals that Australia has a
weakened base for industrial democracy.[16]
Labor Senators concur with these comments.
Conclusion
6.33
While the WR Act introduced may have established
formal mechanisms to recognise different forms of agreements governing the
wages and conditions of employment, the rhetoric of choice is simply not a
reality for many Australian workers. Evidence on the operation of these
provisions overwhelmingly indicates that the only choice for employees is
between accepting an employers decision on the form of agreement as well its
terms or either not having a job or remaining on their current wages and
conditions. It is the view of the Labor Senators that the operation of the
provisions has in many been to the detriment of employees.
Impacts on Industrial Action
6.34
The Bill contains a number of amendments which
would alter the arrangements currently governing industrial action. The
proposed amendments of significant concern include:
- changes to the requirements for protected action;
- suspension and termination of bargaining periods;
- preventing employees from taking protected industrial action in
pursuit of pattern bargaining;
- changes to the operation of section 127 relating to Commission
orders to stop or prevent industrial action;
- the repeal of section 166A; and
- strike pay
6.35
Professor Ronald McCallum, foundation Professor
in Industrial Law at the University of Sydney and Special Council in Industrial
Law to Blake Dawson Waldron, made the following general comments about the
changes impacting on industrial action and bargaining:
On the other hand, schedules 11 and 12 of the Bill seek to
establish a new and a rather rigid form of enterprise bargaining which not only
truncates the freedom of the parties but which diminishes even further the
discretionary powers of the Commission. In a submission of this length, a
technical analysis of these schedules is not warranted: Suffice to write that
the capacity of trade unions to take protected action that is meaningful is
virtually extinguished by complex and bureaucratic secret ballot laws, coupled
with a rigid notification process concerning the days on which, and the exact
nature of the proposed protected industrial action. Automatic cooling off
periods are mandated in the bargaining process which will truncate meaningful
bargaining (see, for example, proposed sections 170MW-170MWI). While the
Australian Industrial Relations Commission does have a role to play in this
process, the provisions are drafted in such a manner that the Commission has
very little discretion to delay or to modify the prescriptive rules laid down
in these two schedules. In my judgement, this bargaining process, if enacted
into law, would not operate to enable the parties to exert economic pressure
upon one another which is the essence of collective bargaining.[17]
6.36
Professor McCallum’s views are widely shared,
including by most academic commentators, the ACTU and unions. The measures
contained in these schedules are designed to prevent workers and their unions
from being able to take any effective action to bargain. They are manifestly
biased against workers and are unsupported either in principle or by any
substantive evidence.
Notice of industrial action
6.37
Under the current legislation, the current
requirement to give 3 clear working days notice of industrial action means that
in practice, 5 days elapse between the day that the notice is given and the day
on which the action commences. The day of giving the notice and the day of
commencement of the action are not counted in the 3 day period. The notice
period is longer if a weekend intervenes in the course of the 3 clear working
days. Further, any action can only be taken within a bargaining period –
initiated after 7 days notice.
6.38
Genuine attempts to negotiate an agreement must
be made before any protected industrial action can occur (s.170MP) and a
bargaining period can be suspended or terminated if genuine attempts to reach
an agreement were not made. Genuine attempts to reach an agreement must
continue to be made (s.170MW(2)(a) and (b)).
6.39
No evidence was given to the Committee that
called into question the effectiveness of these existing requirements. The
evidence – as opposed to ‘expressions of support’ – failed to substantiate the
claim that an additional 2 days notice was required in order to provide the
parties with additional opportunity to reach an agreement. No example of
inadequate opportunity to reach an agreement was given. Indeed, any such claim
must be regarded as extremely dubious in light of the existing legislative
requirements.
6.40
Evidence from Master Builders Australia
suggested that the current provisions were subject to abuse by union. Their
discussion centred around a dissatisfaction with the way in which notices were
served.[18]
The discussion of the proposed amendment did not demonstrate, however, how an
additional period of notice would improve the situation.
6.41
The amendments contained in the Bill would also
require notices of industrial action to detail the type of industrial action to
be taken, the day or days on which it is to occur and the duration. The
Department submitted examples of ‘inadequate’ notices claiming that there has
been some uncertainty as to the degree of detail required on the notices of
industrial action.[19]
These examples appear to be cited in ignorance of the clear guidelines
determined by the Full Court of the Federal Court in Davids Distribution v
NUW [1999] FCA 1108 at para 88 as to the specification of the nature of
proposed industrial action.
6.42
It is to be expected that employers who may be
subject to industrial action would want a maximum period of notice and the
prescription of every detail of the action. However no genuine inadequacy in
the current legislative provisions was identified. On the other hand, Unions
and employees have a legitimate right in a bargaining system to engage in
industrial action.
6.43
It must be remembered that the very purpose of
industrial action in a bargaining system is to bring economic pressure to bear
on the other party. If that other party is armed with extensive advance notice
of the timing and detail of any action, that party’s capacity to avoid the
economic pressure is greatly enhanced. The idea that employers should be able
to take steps to immunise themselves from economic harm is simply contrary to
the system of enterprise bargaining. It removes the bargaining power of
workers.
6.44
It is notable that in Davids Distribution v
NUW [1999] FCA 1108 the Full Federal Court said:
Industrial disputes are dynamic affairs. Decisions as to future
steps often need to be made at short notice, sometimes in response to actions
of the opposing party or other people, including governments, and changing
circumstances. It would be a major, and unrealistic, constraint on industrial
action to require a party to specify three clear working days in advance,
exactly what steps it would take. An unduly demanding interpretation of
s170MO(5) would seriously compromise the scheme of Division 8 of Part VIB of
the Act; it would be difficult for a party to an industrial dispute to obtain
the protection contemplated by the Division.[20]
6.45
The extension of the period of notice from 3
working days to 5 would compromise workers’ and their unions’ ability to take
effective industrial action. The requirement for the precise specification of
the timing and detail of the proposed industrial action would also severely
compromise the effectiveness of any action. There was a general consensus
among the submissions from union that the provisions relating to notice of
industrial action were just one more hurdle for employees and unions to
overcome in order to exercise their legitimate right to protected industrial
action. When combined, however, with all the other hurdles, the result would
be to effectively severely restrict the ability of employees to take protected
action at all:
If the new provisions are added to those already found in the
1996 Act, then the conditions which would have to be fulfilled for unions to
take protected industrial action would be manifestly unreasonable and would
substantially limit the means of action open to trade unions.[21]
6.46
Both the Law Council of Australia and the
International Centre for Trade Union Rights submitted to the Committee that
that these additional measures would compound the existing breaches of ILO
Convention 87 as they place further limitations on the right to strike.[22]
Suspension and termination of
bargaining periods
6.47
The Bill includes amendments affecting the Acts
provisions relating to the Commission’s powers to suspend and terminate
bargaining periods. Labor Senators are concerned about the proposed
requirement for the Commission to impose a mandatory ‘cooling off period’ by
suspending a bargaining after industrial action had been taking place for 14
days. They are also concerned about the proposal to remove from the Commission
the ability to terminate a bargaining period and proceed to arbitration under
section 170MX for workers on paid rates awards where there is no reasonable
prospect of agreement.
Cooling off periods
6.48
It is to be expected that employers would
support the proposed amendments as they would effectively mean that they could
only be subject to a maximum of 14 days industrial action at any one time.
After this period, the bargaining period and the ability of employees and their
union to take protected action would be suspended. However this desire on the
part of employers needs to be considered in the context of a fair system of
bargaining in which employees also have rights.
6.49
It is notable that after a bargaining period is
suspended, there is no intervention or arbitration by an independent
Commission. There is simply the removal of the rights of employees to take any
lawful action in pursuit of their claims. They are compelled to cease any
action and return to normal work. The manifest and fundamental unfairness of
this proposal was the subject of significant evidence.
This provision is so inconsistent with the bargaining model that
it would be difficult to take it seriously were it not for the fact that some
interest groups have lobbied for it. It clearly undermines the integrity of the
bargaining model and the notion that parties should take responsibility for
negotiating workplace matters themselves. Its only purpose is to shift the
balance of power from employees to employers and it has no merit.[23]
6.50
On the other hand, the justification of this
proposal was notably unsubstantiated by anything other than ‘expressions of
support’ by various employers. The basis of claims that the suspension of a
bargaining period will act as a ‘cooling off’ period is not obvious from the
proposal itself. Given the extensive time periods already involved in:
- initiating a bargaining period (7 days);
- undergoing the prolonged secret ballot process (4-6 weeks plus);
- giving 5 working days notice of the action; and
- then 14 days passing since the beginning of any action (which may
not even be continuing),
it is difficult to imagine anyone needing a ‘cooling off’
period.
6.51
Nor is it clear how this unilateral, manifestly
unfair and one-sided withdrawal of workers rights has any rational tendency to
encourage the parties to reach agreement. An employers’ hand would be so
significantly strengthened that the employer would be less inclined to reach an
accommodation. The only influence that could remotely be suggested that might
be brought to bear on employees to reach an agreement by the suspension of
their rights is the possibility that their bargaining position and strength
would be so severely weakened that they would be forced to surrender their
claims.
6.52
Again, it is clear that these measures would
compound the existing breaches of ILO Conventions regarding industrial action
and would clearly be additional legislative breaches of ILO Conventions.
Paid rates awards
6.53
Under the current Act, s.170MX empowers the
commission to terminate a bargaining period and proceed to arbitration in two
particular circumstances, one of which is where the employees subject to the
agreement have their wages and conditions determined by a paid rates award and
the Commission determines that there is no reasonable prospect of the parties
reaching agreement. The Bill proposes to amend this section and remove this
provision. Labor Senators believe that this is a retrograde step as it removes
the protections available to employees covered by these arrangements. This
view was echoed by the CPSU who submitted:
Access to special arbitration where acceptable agreements cannot
be reached is an important safeguard utilised on several occasions in various
areas of public sector employment. The reasoning behind the inclusion of this
provision in the 1996 legislation has been well and truly vindicated. Its
removal would leave these employees with the alternatives of the award
safety-net or an agreement on their employer's terms.[24]
6.54
Rather than limiting the Commission’s ability to
arbitrate awards under this section many witness argued that the provisions
should be expanded. The evidence put before the Committee of intractable
industrial disputes provides a strong case for not only preserving the current
provisions under s.170MX relating to intractable disputes for employees subject
to paid rates awards but extending this more generally to all cases where the
Commission determines that there is no prospect of the negotiating parties
reaching agreement.
6.55
The evidence also demonstrates that employers as
well as unions have sought to have intractable disputes arbitrated by the
Commission. MR Herbert from the Australian Industry Group told the Committee:
We have found that protected
action has been too easy to undertake and too hard to end. There have been a
number of disputes where the option of arbitration might have had an advantage
for the parties.[25]
6.56
Similarly the submission from the Australian
Education Union indicates how State Government’s have used these provisions to
settle disputes in the education sector:
The fact...that two State government’s...have enthusiastically
embraced the opportunity to have the Commission resolve protracted bargaining
disputes with the AEU is a clear indication that there remains bipartisan
support for a significant retention of the Commission’s arbitral powers.[26]
6.57
In any event, the concerns raised by various
parties about the deletion of the s.170MX provisions have not been answered in
any way by evidence presented to this Committee. There remain compelling
reasons to retain the power of the Commission to arbitrate in cases of
intractable disputes. No case has been made out for the removal of the
Commission’s s.170MX powers; indeed not one example of any difficulty arising
from the current provision was raised.
6.58
Labor Senators recommend that the Australian Industrial
Relations Commission be empowered to make awards without limitation on content
to facilitate the settlement of industrial disputes.
Pattern bargaining
6.59
The Bill proposes a new section 170LG which
seeks to prohibit unions from ‘pattern bargaining’. This amendment generated a
great deal of discussion in submissions and during the Committee’s public
hearings. These discussion clearly highlighted that there was a great deal of
confusion of exactly what pattern bargaining was. Labor Senators note that the
Government couldn’t even determine what pattern bargaining was and had to
resort to defining what pattern bargaining wasn’t in the drafting of the Bill.[27] This lack of precision was
extensively criticised and prompted some witnesses to suggest a definition.[28]
6.60
It seems that the measure is designed to
prohibit the pursuit of the same enterprise bargaining claim at more than one
enterprise. This would mean that a union would be in breach of the prohibition
if it pursued a claim for paid maternity leave across an industry, or for that
matter claimed the same quantum wage increase. The breach for making the same
claim would apply regardless of the outcome of the claim and the preparedness
to negotiate on the claim at the enterprise level.
6.61
The concerns about pattern bargaining being
engaged in by unions was relatively narrow, focusing on one union campaign in
one State at one point in time (the AMWU Victorian ‘Campaign 2000’):
Ai Group’s principal concern and the reason we seek more
effective compliance measures, particularly arises out of a situation in
Victoria brought about by a small group of unions...Ai Group is not targeting the
great majority of unions that continue to operate within the bunds of proper
conduct, including conduct involving protected industrial action.[29]
6.62
There was no proper analysis of the requirements
of the existing legislation and how these requirements may impact on the
concerns raised by employers about this campaign. In particular, no employer
gave any evidence or analysis in relation to the requirements of s.170MP or
s.170MW. In the absence of any analysis or evidence regarding the operation of
the current legislation on the concerns of employers about ‘Campaign 2000’ it
is difficult to justify any amendments regarding pattern bargaining, let alone
the amendments that have been proposed.
6.63
In fact, many employers did not support the
proposals for a blanket ban on pattern bargaining, believing that there were
cases where common agreements were to the benefit of employers as well as
employees.[30]
6.64
In addition to being unfair and unbalanced,
there is a level of hypocrisy in employer submissions that supported a ban on
union pattern bargaining but that permitted employers to pattern bargain. In
fact it was clear from the evidence that employers, including the Federal
Government as an employer, engage in pattern bargaining. The OEA also appears
to promote pattern bargaining in relation to AWAs.
6.65
It is relevant to note that no other country was
identified as prohibiting pattern bargaining. This is because such a
prohibition would be contrary in principle in a bargaining system. As Dr David
Peetz said:
This proposal offends the principles of the bargaining model.
It takes away from the parties the opportunity to decide how they conduct their
bargaining. It further takes away the opportunity to decide the level at which
they bargain. It involves the Commission in determining what terms and
conditions of employment are appropriate to be included in an agreement for a
single employer, in direct contravention of the principle that this is
precisely what the Commission should not be doing. It appears to permit
‘pattern bargaining’ by employers (which can occur extensively) but not by
unions. It fails to define what pattern bargaining is. Its sole purpose
appears to be to shift of power away from employees to employers, but in doing
so it distorts the bargaining model severely.[31]
6.66
As well as being contrary to a bargaining
system, evidence was also provided that pattern or multi-employer bargaining
was economically beneficial. Professor Joe Isaac submitted to the Committee:
It is difficult to understand the in-principle objection to
multi-employer agreements. There may be situations where a number of employers
in the same industry prefer to deal collectivity with the union and to have, as
far as possible, uniform wages and conditions within the industry, while
allowing certain variations to meet the circumstances of particular firms.
Competition and profitability would then be based on managerial performance...On
economic grounds, uniformity in pay and conditions ensures greater efficiency
in the allocation of resources.[32]
6.67
On the basis of the overwhelming evidence put
before the Committee by both employers, union and academics Labor Senators can
find no justification for the proposed amendments contained in the Bill.
Section 127 – orders to stop or
prevent industrial action
6.68
The Bill proposes a number of amendments to
section 127 (s.127) of the Act which allows the Commission to make orders to
stop or prevent industrial action. While these amendments aim to improve the
efficiency of the provisions in preventing unprotected industrial action, may
have the unintended consequence of affecting legitimate industrial action.
6.69
Under the existing legislation, orders can be
sought and enforced under s.127 in respect of industrial action. These orders
have not, to date, applied to protected industrial action. One of the main
amendments to this section of the Act is to require the Commission to hear
applications within 48 hours where possible, or issue an interim order stopping
the industrial action.
6.70
The proposed amendments will make the issuing of
s.127 orders against employees and their unions by the Commission, and their
subsequent enforcement by court injunction, automatic. The claimed
justification for these measures is the fact that some unions have engaged in
unprotected action and that action was unable to be prevented by the current
s.127 provisions. There is a possibility, however, that automatic orders under
s.127 may be made where the action concerned is protected, especially given the
complexity of the requirements to qualify for protected industrial action that
would be introduced under this Bill. Where an application is made for a s.127
order and there is some uncertainty about whether or not the action is
protected, if the Commission cannot determine the case within 48 hours then it
must issue an interim order requiring the industrial action to stop despite the
fact that the action may well be legitimate. This situation will add to
uncertainty for those taking industrial action and creates an avenue for abuse
of the section by employers. No regard is to be had to the legitimacy or
otherwise of the action.
6.71
The Australian Catholic Commission for
Employment Relations supported this position stating:
The time constraint could compromise the procedural requirements
for determining whether the industrial action is protected or unprotected.
This may result in the improper resolution of disputes, as the determination of
orders would be without regard to the circumstances that have led to the taking
of industrial action.[33]
6.72
Labor Senators also note that employers are to
be immune from s.127 orders. No explanation has been put forward as to why
this should be the case.
6.73
An examination of the practice in relation to
the current provisions demonstrates that these amendments are unjustified. Most
disputes that are the subject of s.127 applications are resolved without orders
having to be made. Only 14.8% of applications result in orders. Orders have
been refused in only 9% of cases, a proportion of which were union applications
against employers. Over 50% of applications that required determination were
decided within 2 days of the application being made. A further 19% were
determined within one week. In only a few cases concerning unprotected action
have orders been refused, and in those cases only on clear and justifiable
grounds.[34]
It is also significant that nearly 80% of industrial disputes were for a
duration of up to and including 48 hours.[35]
The evidence establishes that the Commission acts with appropriate speed and
urgency in hearing and determining s.127 applications.
6.74
As well as being unjustified in practice, these
amendments are logically unsupportable. This is because it is not apparent why
making s.127 orders automatic will act to prevent unprotected action from being
taken. If there is a willingness to engage in action that is unprotected, the
automatic nature of orders is unlikely to affect this decision. In any event,
by the time orders are obtained in relation to wildcat unprotected action, the
orders in most cases will have no utility. The very complaint used to justify
the amendments will be largely unaffected by them.
6.75
Nor has it been explained why legitimate, albeit
unprotected, industrial action should be made subject to automatic orders and
injunctions. The removal of Commission and Court discretion opens the way for
the unprincipled and unfair operation of s.127. Under these proposals it will
be possible for an employer to obtain an injunction from a court even where
that employer does not have ‘clean hands’ - contrary to established legal
principle. For example, the unprotected industrial action by employees may be a
reasonable and proportionate response to illegitimate and perhaps illegal
industrial action by the employer. The employer can nevertheless obtain an
order and injunction.
6.76
Labor Senators believe that the removal of
Commission and court discretion in the issuing of orders and injunctions is
without justification or merit. This is particularly the case when the
underlying issue will be unaddressed and unresolved. The amendment to allow
third parties to seek orders is not designed to encourage a responsibility for
workplace solutions and instead is an invitation to third parties to intervene
in industrial disputes against the interests of workers who are not even
employed by them.
Repeal of section 166A
6.77
The repeal of s.166A will enable employers to
sue employees and their unions without having to seek a certificate from the
Commission. Currently, the Commission is required to attempt to resolve the
dispute and a certificate must be issued if action has not ceased within 72
hours, or earlier if justified. Not one case of difficulties caused by these
requirements, including the possible delay in bringing an action, was raised.
6.78
In fact, the operation of s.166A can only be
considered to be an unmitigated success. The evidence of DEWRSB is that there
were 101 applications under s.166A in the period from 1 January 1997 to 30 June
1999. In the 2½ year period, certificates were issued in only 25 matters, 3
being refused and 73 matters being settled. Only 7 actions in tort were
initiated after the granting of a certificate.[36]
6.79
The reasonable concerns and reservations of
other significant employer organisations must temper any support for the repeal
of the section by some employers. For example the Australian Industry Group
submitted:
Ai Group’s experience is that s.166A has proved a useful
provision in enabling the Commission to take speedy action in resolving
disputes by conciliation without the need for an employer to launch immediately
into an action in tort.[37]
Strike pay
6.80
It is currently illegal for employees to be paid
for periods of industrial action. The proposal to increase the prohibition to
the entire day on which any action is taken is striking for its lack of logic
or support.
6.81
The provision is sought to be justified as a
means of overcoming ‘any ambiguity in the current provisions’. No examples of
difficulties or ambiguities arising from the current provisions were identified
however. One case, HSUA v Mt Alexander Hospital [Print P2889] was cited
by DEWRSB[38]
as an example of uncertainty as to the operation of the strike pay provision
(that the Department acknowledges is ‘working effectively’[39]). In light of the decision in
that case it is difficult to imagine where any uncertainty may exist.
6.82
Furthermore, in what can be identified as a
general consensus amongst unions and employers, it is considered that this
provision will lead to an escalation of disputation rather than the
clarification of any ‘ambiguity’.
6.83
For example, Master Builders Australia submitted
that:
It is not uncommon for employees on construction sites to hold
stop work meeting during the course of the day. In the vast majority of cases
these are of short duration, and work resumes once the stoppage has concluded.
Under the proposal there would be no incentive for employees to return to work...[40]
6.84
Similarly the submission from the Australian
Education Union alluded to the likely increase more militant forms of
industrial action if the new provisions were enacted:
If a conservative group of employees such as school bursars are
driven to take full strike action as a consequence of [current] section 187AA,
it is not hard to envisage the level of industrial disputation likely to occur
in other more militant industries.[41]
6.85
In the context of the legislation, the proposal
to withhold an entire days pay when the only industrial action taken may have
been a ½ hour stop work meeting can only be considered unfair and penal in
nature.
Conclusion
6.86
Labor Senators believe that the proposed
amendments in the Bill relating to industrial action represent a further
downgrading of the ability of employees to collectively bargain. Some of the
changes discussed here do not appear to be based on any evidence that the Act
was ineffective. One must assume therefore that the changes reflect an
ideological predisposition to prevent industrial action wherever possible.
Secret Ballots
6.87
Labor Senators do not agree with the conclusion
of the majority of the Committee in regard to the Bill’s proposed provisions
relating to secret ballots. Labor Senators have serious concerns about the
impact these provisions would have on the ability of employees to engage in
legitimate industrial action and consequently Australia’s compliance with
international labour law. The deficiencies in the proposed amendments were
borne out time and again in both written and oral evidence presented to the
Committee. The secret ballot model as proposed will only serve to interfere in
unions organisation of their activities and employees ability to bargain with
their employers.
6.88
Schedule 12 of the Workplace Relations Amendment
(More Jobs Better Pay) Bill sets out new requirements that would need to be
fulfilled before industrial action would qualify as being ‘protected’. The
proposed provisions would require unions or employees to apply to the
Commission for a secret ballot order prior to industrial action being taken.
For the ballot to be approved and any subsequent industrial action to be
‘protected’, at least 50 per cent of eligible employees must have voted and a
majority of these employees (ie greater than 50 per cent) must have voted in
favour of taking industrial action. The proposed provisions would also require
an application to the Commission for a secret ballot order to include specific
detail information including, inter alia, the precise nature, timing and
duration of the proposed industrial action. The cost of a ballot would, in the
first instance, be borne by the applicant.
6.89
Criticism of the proposed amendments has been
made on a number of grounds: that the provisions are unnecessary and
unworkable; that the provisions will substantially increase the time associated
with taking protected industrial action; objection to the cost imposition on
applicants; and perceptions that the provisions are one sided.
Current provisions in the WR Act to
conduct secret ballots
6.90
The Government’s intention in introducing
compulsory secret ballot provisions is to ensure that the decision to take
protected industrial action is decided in a democratic fashion and reflects the
wishes of the employees directly involved. In principle, Labor Senators are in
complete agreement. Strike action should be used as a last resort once workers
believe that all other attempts to settle a dispute have been exhausted. If
the employees concerned do not believe that industrial action is appropriate
then they should not be forced into it. Labor Senators would contend, however,
that there is no evidence that such occurrences are so regular as to require a
secret ballot for each proposal to take industrial action.
6.91
The Australian Council of Trade Unions submitted
to the Committee that they supported the right of union members to vote on the
decision to take industrial action and that such votes were generally
undertaken and that some unions routinely conducted these votes as secret
ballots.[42]
If employees are concerned, however, that a decision to take industrial action
may not reflect the views of employees, section 135 of the Act currently
provides for any employee to apply to the Commission for a secret ballot. The
ACTU also put to the Committee that there is no bar on employers or any other
party from making submissions to the Commission that a ballot should be
ordered.[43]
6.92
It is also noted that the Commission is
empowered under the current act to order a ballot on its own initiative if it
believes that in doing so it would help resolve a dispute, or prevent further
industrial action.[44]
These powers of the Commission have not been used frequently and where they
have been it has not been to ascertain employees’ views in relation to
industrial action.[45]
6.93
The submission from Australian Business Limited
examined the operation of the Act under section 135 and concluded that:
...while the number of applications is small, the existing
provisions appear to be working adequately. It should, however, be noted that
the existing provisions are considerably less complex than the proposed
amendments.[46]
6.94
Labor Senators do not believe that a case has been
made that the existing arrangements are inadequate. Their view is that there
is no need for a system of compulsory secret ballots prior to the taking of
protected industrial action. There are also other reasons why these proposals
should be rejected.
Restricting the ability to take
industrial action
6.95
Leaving aside the issue of whether new
provisions for secret ballots are necessary, Labor Senators have concerns about
the feasibility of the model proposed in the Bill. These concerns relate to
the ability of employees to take protected industrial action. The Committee
heard on numerous occasions from unions, academics and lawyers that it would be
more difficult, more time consuming and costly for employees to exercise their
legal right to strike under the proposal.
6.96
The proposed secret ballot system would increase
in time required to effect a period of protected industrial action. The
Committee heard that it could take, at a conservative estimate, up to six weeks
from the time of the application for a secret ballot order to when an outcome
of the ballot was known.[47]
6.97
Proposed section 170NBCA would require the
Commission to determine all applications within 4 working days wherever
possible. The ACTU submitted, however, that the complexity of the requirements
for a valid application will make it possible to delay the process. The
submission states:
...employers...wishing to delay the action will be able to argue a
number of issues before the Commission, such as the validity of the bargaining
period and whether or not the union has genuinely tried to reach agreement. In
addition, procedural issues, such as who should conduct the ballot, the roll
and the timetable are all issues for debate which can be used for delay.
Further, if the employer alleges that the union is engaged in
pattern bargaining, this must be referred to a Presidential Member, before whom
the employer could mount arguments in respect of each issue contained in the
claims which are the subject of the bargaining period.
With the potential of appeals, which would presumably delay the
holding of a ballot, it is impossible to predict how long the period between
the application for a ballot and its commencement would take, but weeks and
even months is a certainty.[48]
6.98
The ACTU also expressed a concern about the
quorum requirements of the proposed amendments. For a ballot to succeed at
least 50 per cent of eligible employees must vote. It is a fact, however, that
not everyone in a workplace wants to become actively involved in workplace
relations issues, preferring to leave such matters to ‘someone else’. A
voluntary vote can subsequently result in a low turn out of voters. This is
likely to be a greater problem in workplaces that are negotiating non-union
certified agreements which, under the proposed provisions, would require all
employees covered by that agreement to vote (compared to only union members
where a union applies for a secret ballot order in the case of a union
negotiated certified agreement). A high level of apathy in the workplace may
make it increasingly difficult to get legitimate strike or other industrial
action approved.
6.99
The Committee heard from those in support of the
proposals, that these provisions are all about ensuring that the decision to
take industrial action is democratically decided. However, the submission from
the ACTU to this inquiry shows in a very simple example how the requirement for
a 50 per cent voter turnout can have the opposite outcome:
Two examples should be considered, both involving workplaces of
100 employees. In the first, 49 employees in the ballot vote, all in favour of
strike action. In the second, 50 employees vote, 26 of them in favour of
strike action. In the first example, strike action would not be authorised,
while in the second it would, even though it would appear that there was
substantially more support for the strike in the first example.[49]
6.100
Another concern expressed to the Committee was
the highly prescriptive nature of the proposed provisions. An application for
a secret ballot must contain details of the precise nature of the intended
action as well as the day or days on which it is to take place and its
duration.
6.101
These requirements will limit the flexibility
available to employees or employee organisations when taking industrial action.
Given the significant amount of time required to hold a secret ballot under the
proposed model it is conceivable that circumstances may have changed
significantly from the time the ballot was initiated to the time that
industrial action is taken. Employees are, however, locked into that form of
industrial action. Any other form of industrial action would require a
completely new ballot to be held. This would also be the case for any
subsequent industrial action. This could greatly extend the average time
involved before reaching agreement. It may also result in employees or their
unions favouring strikes over other less damaging forms of industrial action
simply because it is too difficult to organise on ongoing industrial campaign.
6.102
These views were supported by the State Public
Services Federation Group of the Community and Public Sector Union who told the
Committee:
The proposals on the secret
ballots, if ever implemented, would put people in the position of nominating
specific days. If, when you came to the day on which you proposed to have
action, you decided that perhaps there were prospects for further negotiation,
you would be stuck with it. It seems to me a proposal which, if it were
seriously implemented, would push people into taking industrial action when
there may well be alternatives.[50]
6.103
This is compounded by the fact that the cost of
the ballot is, in the first instance, to be borne by the applicant, and only 80
per cent reimbursed. This added financial drain on unions, who are already resource
constrained, is likely to encourage applications for industrial action on a
larger scale as it will be too expensive to continually fund ballots. Imposing
additional costs on unions is seen to be a further attempt to reduce the
influence of unions in the workplace.
6.104
The Textile, Clothing and Footwear Union submitted that secret ballots would
particularly restrict the ability of employees from a non-English speaking
background:
The proposed requirement to
hold the secret ballot before the taking of industrial action is unnecessary
and restrictive to the point of obstructing the right of workers to take
industrial actinon. However, in TCF industries it will impede our members’
capacity to make democratic decisions about industrial action due to the low
levels of literacy in English and cultural suspicion of government agencies
which typify our membership.[51]
(Evidence Sydney, 26 October 1999, p. 364, Ms Robbie Campo, TCFUA)
6.105
Professor Ronald
McCallum was concerned that the move to introduce secret ballots would result
in employees ignoring the regulated processes for protected industrial action
in the WR Act, and simply take wildcat industrial action, possibly against the
advice of their unions:
...I suspect, from my long
experience in labour law, that such a bureaucratic system will drop industrial
action down from union executives and union secretaries to wildcat action. I
think we will see an increase in short-term wildcat action, and there will be a
series of legal decisions seeking to assert that wildcat action on the shop
floor can be sheeted home to trade union officials. Similar case law occurred
in England in the late 1960s and early 1970s, to little effect.[52] (Evidence Sydney, 26
October 1999, p. 350, Professor Ronald McCallum)
6.106
Evidence presented to the Committee in Western
Australia, where a complex system of secret ballots already exists, supports Professor McCallum's dire predictions,
insofar as the WA provisions have simply been ignored:
...the secret ballot
provisions at the state level have in fact never been used. And why have they
never been used? Not because people have been particularly defiant, but because
they are inoperable. You cannot pass legislation which ultimately is inoperable
and unable to be used by parties. Employers are not interested in using the
provisions, employees are not interested in using the provisions and,
certainly, there has been no attempt by either the government or any interested
party as defined under the state legislation to trigger a secret ballot process
in spite of industrial action occurring.[53]
...our members have never
completed a secret ballot for industrial action since that legislation has been
in place, and they will not. They have made clear decisions not to comply with
that legislation, I should tell you. They have indeed engaged in industrial
action ranging from stop-work meetings through to full-blown stoppages that
have lasted for 6½ to seven days without complying with the secret ballot
legislation. Ultimately, their voice will not be silenced in the way they
feel...Inevitably, occasions arise where the union officials are not even aware
in the first instance that members have walked off the job, and this indeed did
happen in the instance I am citing. We came in after the event. Members were
angry about health and safety breaches and left the workplace-quite rightly, in
our view. It is impossible in a scenario like that for the legislation to work
efficiently or to work at all.[54]
6.107
The Bill’s proposal has also been criticised as
being one sided, designed to restrict employees exercising their legal right to
take industrial action. One area where the proposals are believed to be one
sided is that while a ballot is required to initiate industrial action, no
ballot is required to end it. Instead the legislation imposes a time limit on
protected action of 14 days after which employees must return to work be
subject to legal action. Many witnesses claimed that this showed that the
provisions were far from democratic:
Our concern is also about
how secret ballots are being introduced. From our understanding, if you are
truly going to be consistent about a democratic approach using secret ballots,
why is there not a secret ballot to lift the industrial action? In testing that
notion with various people, particularly employers—not necessarily church
employers—they say, ‘No, we do not want that because that would mean we would
not get the action lifted quickly enough.’ So the notion is that secret ballots
are not just democratic; they also seem to be about the industrial process and
people are saying that secret ballots will prolong an industrial process.[55]
The Minister’s refusal to consider secret
ballot requirements to call off a strike is conclusive evidence that this
proposal has nothing to do with democratic functioning, and everything to do
with restricting the right to strike. Further evidence is provided by the lack
of any support for proposals such as compulsory secret postal shareholder votes
on issues such as takeovers, or whether or not a company should lock-out its
employees.[56]
6.108
The ACTU also submitted to the Committee that
the requirements for what must be included on the ballot paper were one sided.
They stated:
...another statement to be included on the ballot paper...[is] that
there is no requirement for the voter to take industrial action, even if a
majority vote for it, and that it is illegal to be paid wages while engaged in
industrial action. At the very least, the statement should also say that if
the voter takes industrial action pursuant to the ballot, no legal action can
be taken by the employer against such action.[57]
6.109
Pre-strike secret ballots are used in other
countries and some witnesses drew comparisons between the proposal in the Bill
and the system in the United Kingdom. The ACTU commented in its submission
that:
while the UK system is unacceptably complex and technical , and
does lead to a great deal of litigation, it is not as rigid or restrictive as
that proposed in the Bill.[58]
6.110
In the United Kingdom the Trade Union and
Labour Relations (Consolidation) Act 1992 requires secret ballots to be
conducted for any industrial action in order to attract statutory immunity from
common law action. There are a number of key differences between the UK system
and the model proposed in this Bill. There is, for example, no requirement in
the UK model to outline the precise nature, timing and duration of industrial
action.
6.111
An important difference in this respect can be
seen in relation to the question that is put to employees on the ballot paper.
In the UK, all that is required on the ballot paper is at least one of the
following two questions:
- Are you prepared to take part in a strike?
- Are you prepared to take part in industrial action short of a
strike?
6.112
Where both questions are asked, the decision
about what form of action is taken can be decided later. This compares with
the proposal in this Bill which requires precise details of the type of
industrial action that is to be taken and this must be determined prior to the
ballot being conducted.
6.113
In relation to the timing of industrial action
the UK system does set a time limit, currently 4 weeks from the date of the
ballot,[59]
in which industrial action can be called. Employers must also be given 7 days
notice of the date or dates on which action is intended to commence. This is
far less restrictive than requiring an exact date on which industrial action is
intended to commence as well as the duration of the intended action which must
all be decided prior to the ballot being conducted.
6.114
For a ballot to be approved in the UK, only a
majority of votes in favour of taking industrial action is required. This is
much less restrictive than requiring a quorum of 50 per cent of eligible voters
as in the Australian proposal.
International labour law
6.115
Some witnesses also argued that the restrictive
nature of the proposed secret ballot provisions as described above would put
Australia in further breach of ILO Convention No. 87. The International Centre
for Trade Union Rights submitted to the Committee their view of the ILO’s position
on secret ballots:
It is true that the ILO supervisory
bodies have, in the past, taken the view that mandatory pre-strike ballots do
not necessarily conflict with the principle of freedom of association. However
they have also maintained that the legal procedures for declaring a strike,
such as secret ballots:
- should be reasonable;
- should not place substantial limitations on the means of
action open to trade unions;
- should not be so complicated as to make it practically
impossible to declare a legal strike; and
- are acceptable, and do not involve any violation of the
principle of freedom of association, only when they are intended to promote
democratic principles within trade union organisations.
The secret ballot provisions of the Bill violate each of these
principles.[60]
(emphasis in original)
Conclusion
6.116
Labor Senators agree with those submissions and
witnesses that argued that the secret ballot provisions are excessively
prescriptive and will further impede employees and unions in organising their
activities. The provisions are overly bureaucratic and will prove difficult to
comply with. This will remove the ability of many employees to exercise their
legal right to protected industrial action under the WR Act. The inevitable
consequence of this is that workers may be forced into industrial action which
is not considered legal under the Act.
6.117
In the labour market, a workers ability to
withdraw his labour is the primary means of exerting economic pressure on
employers during a bargaining process. The model of secret ballots proposed in
this Bill will substantially constrain employees ti do this, tipping the
balance of power in the bargaining process even further toward employers.
6.118
Labor Senators are not convinced that secret
ballot provisions are necessary in relation to the taking of protected
industrial action. There is no evidence that the current provisions are not
operating effectively.
6.119
Aside from this, Labor Senators believe that if
a compulsory system of secret ballots were to be introduced, the current
proposal would need to be significantly amended, possibly drawing of some of
the features of the system in the United Kingdom, so that it is not as overly
prescriptive and would satisfy the ILO’s principles associated with the conduct
of pre-industrial action secret ballots.
Right of entry
Amendments proposed in the Bill
6.120
The amendments proposed in Schedule 13 of the
Bill would change the provisions of the WR Act regulating union right of entry
to workplaces. The most significant amendment proposed is to restrict the
rights of union officers to enter workplaces to situations where the union has
a written invitation from an employee at the workplace who is also a union
member.
6.121
This new requirement for a written invitation
would apply whether the union officer was entering the workplace to investigate
a suspected a suspected breach of the Act, an award or certified agreement, or
whether the union officer simply wanted to hold discussions with employees.
However, where the union officer is exercising right of entry to investigate a
suspected breach, the written invitation from an employee would also have to
specify that the purpose of the invitation is to invite entry to investigate a
breach, and that the employee union member has reasonable grounds to believe
that there is evidence at the workplace relevant to the suspected breach. Any
invitation issued to a union would only remain valid for a period of 28 days.
6.122
Proposed section 285CC would allow an employee
to request that the union keep the employee’s identity confidential. To keep
the employee’s identity confidential, a union could apply to the Registrar for
a ‘section 291B certificate’, which would be produced to the employer instead
of the written invitation. This certificate would state that the Registrar is
satisfied that the required written invitation had been issued, but the
certificate would not identify any of the employees who signed the invitation.
6.123
Item 13 would amend the Act to allow employers
or occupiers of premises to request the union officer to show their invitation
or permit. If the officer did not comply with this request, they would not be
entitled to stay on the premises. In addition, if the right of entry relates to
a suspected breach, then the officer could be required to provide particulars
of the suspected breach, including:
- the requirement of the Act, award, order or agreement that is
suspected of being breached;
- the person’s reasons for suspecting that a breach has occurred;
and
- the person’s reasons for believing that there is evidence of the
suspected breach on the premises.
6.124
Alternatively, the union officer could show the
employer/occupier a section 291B certificate which contains a statement
relating to the suspected breach.
6.125
This new requirement to provide particulars of a
suspected breach is also accompanied by a new entitlement for an employer or
occupier who ‘is not satisfied that the (union official) has provided adequate
particulars’ of the breach to eject the union official from their premises.
6.126
The amended right of entry provisions would
retain the current requirement for 24 hours notice before exercising right of
entry. However, currently a union must only give notice to the occupier of the
premises (in many cases this will also be the employer). Under new subsection
285D(2D), the union would be required to give 24 hours notice to both the
occupier and the employer, and the notice would now have to be in writing and
specify on which date the entry would occur.
6.127
The amendment proposed in item 15 would allow
the employer or occupier to require the union officer to only conduct
interviews or discussions with employees in a particular room or area of the
workplace that is regarded as an employee meeting room or meeting area.
6.128
The Bill would provide the Commission with new
powers to vary or revoke permits, and make ‘appropriate orders’ in
circumstances where the Commission is satisfied that the union officer has
‘abused’ the permit system, has intentionally hindered or obstructed any person
when exercising right of entry, has failed to protect an inviting employee’s
identity or has ‘otherwise acted in an improper manner’.
6.129
The Department submitted that the amendments
were necessary to ‘improve the operation of the current permit-based system
while maintaining the right of entry...While the existing statutory scheme is
considered to be working reasonably well, experience has indicated that
modifications are required in some areas’.[61]
Unfortunately, the only relevant experience that the Government seems to have
considered in developing the proposed amendments is the experience of
employers.
6.130
In general, employer groups who supported the
proposed amendments attempted to provide case study examples of union officers
abusing their right of entry permits. For instance, the Australian Chamber of
Commerce and Industry provided the example of right of entry exercised by the
Transport Workers’ Union at ‘The Recyclers’ in Queensland:
While the director of The Recyclers...was giving evidence in a
roping in dispute, the union organiser arrived unannounced, without giving
notice at the workplace in question. The employer argued that this was
calculated action on behalf of the union to ‘cause trouble’ by means of
upsetting and influencing the employer, while having the ability to talk to
staff without management present.[62]
6.131
Setting aside the issue of whether management
ought to have the right to monitor contact between union officers and union
members, this case study does not demonstrate why further changes need to be
made to the right of entry provisions. If the Transport Workers’ Union did not
provide notice of entry as alleged, then the current provisions of the Act
would have been breached (subsection 285D(2)). There is currently scope for
such breaches to be dealt with under the WR Act.
6.132
While employer groups were keen to see new
restrictive and punitive measures enacted to prevent unions from investigating
breaches or speaking with their members, there was scarce evidence of breaches
of the current provisions of the Act, or at least cases where employers had decided
to take action:
Mr Herbert—If you have
rights of representation, you get responsibilities which you must adhere to.
That is why, in the right of entry example, I think it is open to you to say,
‘If you are jockey and you have done the wrong thing in a race, the stipendiary
stewards might suspend you for a fortnight; if you do it again, you might get a
month; if you do it a third time, you might be out for a year.’ That could be
an issue that could apply with your right of entry provisions if you go outside
the bounds of the legislation and breach your responsibilities.
Senator GEORGE CAMPBELL—But
isn’t that provision available to you now? Can’t you seek now, under the
current act, the revocation of right of entry?
Mr Herbert—Yes, you can.
Senator GEORGE CAMPBELL—Have
you ever attempted to?
Mr Herbert—Not often used,
but I think there is one—
Senator GEORGE CAMPBELL—Have
you attempted to use it?
Mr Herbert—No, but there
might be some opportunities coming up where we might.[63]
6.133
The evidence in favour of the amendments was
very limited, and generally related to situations where the current provisions
of the Act would be sufficient to deal with any genuine breaches of the right
of entry laws. On the other hand, the Committee was provided with a great deal
of evidence about employers deliberately frustrating right of entry by union
officers in breach of the WR Act. Unfortunately, there were no amendments
proposed in the Bill to deal with this conduct by employers:
In some extreme cases, employers have denied all entry rights to
our union where the existence of award coverage is disputed. In other cases,
employers have impeded inspection of records, imposed unacceptable restriction
on access within the workplace, and allocated unsuitable venues for union
meetings. CPSU has been forced to use the Commission or the Federal Court to
resolve these matters. Orders have been obtained enforcing our rights. However,
this has involved considerable expense and time. In the meantime, employers
have been able to arbitrarily deny our members their right to see their union
in the workplace.[64]
There is a company in the
northern suburbs called Johnson Matthey, which is a gold refining company.
Sixty of the 95 workers applied to join our union. We have had to go to the
Federal Court on one occasion and we have had any number of Industrial
Relations Commission hearings trying to assert our right of entry...It was a very
costly affair in that particular example...generally we find employers will get
around the commission’s order, and if they really want to dig in we end up in
the Federal Court.[65]
As our witnesses will
highlight, award non-compliance is endemic to the TCF industries. The
government’s assumption in proposing these amendments—namely, that unions are
abusing the current powers—is simply false. In fact, in the TCFUA’s experience,
it is the employers who are obstructive and who misuse the current provisions.
We refer the Committee to case study No. 6 of the TCFUA national council
submission. This case highlights the response of many employers in the TCF
industry when they discover that union members have reported a suspected
breach. ...If these amendments were successful, award breaches would simply go
unchecked. While Mr Reith argues that it is not the role of unions to act as
industrial inspectors, the TCFUA has no choice, especially in relation to
outworkers. In our experience, no other organisation is actively working to
enforce award conditions. Mr Reith may be willing to stand by and watch workers
in Australia be paid as little as $2 an hour, but the TCFUA is not.[66]
6.134
Unfortunately, the Government seems to have
ignored the experience and concerns of employees and unions when developing the
Bill. As with much of this Bill, the amendments are clearly unbalanced and
unfair, only taking into account the interests and concerns of employers.
6.135
As a result, the amendments drew criticism from
a wide variety of people who made submissions or appeared before the Committee.
The following extracts provide a representative example of the views of community
groups, lawyers, religious organisations, State governments, academics and
unions:
...in order to ensure employees have freedom of choice in union
membership and are not prevented from having access to unions, there should be
minimalist regulation of union right of access to workplaces. Rather than
easing regulation of union right of entry, consistent with notions of freedom
of association, the provisions proposed here seek to tighten them further. They
thus would move the industrial relations system further away from freedom of
association than it is at present. Their main effect and purpose is to alter
the balance of power away from employees.[67]
The lower paid are the most vulnerable to exploitation and it is
unreasonable to expect that they could improve their position by ‘disarming’
the organisations that have an interest in ensuring compliance with awards and
agreements. The Bill does not provide an adequate means to fill the gap if
unions are marginalised from the system. ACOSS does not support measures which
will reduce the ability of organisation of employers or employees to represent
the interests of their members.[68]
The Queensland Government believes that access to workplaces is
vital both for unions to effectively represent their members, and to ensure
employer compliance with their legal obligations under awards, agreements and
legislation. By contrast, the federal amendments place further obstacles in the
way of unions being able to access their membership or employees in the
workplace.[69]
Changes to the right of entry provisions for unions seem
destined to restrict the right to organise, as well as limit the possibility of
any general inspections of work sites...Union organisers have traditionally
provided a ‘watch dog’ function that has helped to reduce the incidence of
‘sweatshops’ and other forms of exploitation in the workforce. Unless the
Government implements an effective alternative inspection system, the right of
entry provisions, as they exist within the WR Act, should remain.[70]
The Bill is heavily directed
towards de-unionising through unacceptable restrictions on right of entry,
proposals which were largely rejected in 1996 and which would ensure that that
right of entry would be largely ineffective.[71]
6.136
The Department, in answer to a question on
notice from the Committee, noted that the Ministerial Discussion paper which
preceded the Bill also drew opposition to the Right of Entry provisions. In
particular, a submission by 80 IR lawyers said:
If the right to freedom of association is to be protected, there
must be a guaranteed and unrestricted right of access of unions to employees in
the workplace. The Government must also acknowledge and do something about the
apparent ineffectiveness of departmental inspectors in order to ensure that the
significantly stripped-back minimum standards still applicable to employees in
Australia, are properly observed.
6.137
The issue of effective award compliance
inspection has been identified as an important element in the consideration of
the Bill. Two specific facts drawn to the Committee’s attention by the
Department support the need for less restrictions on union right of entry.
6.138
Firstly, the Minister has given directions under
subsection 84 (5) and/or Workplace Relations Regulation 9(3) that prosecutions
for a number of matters, including award breaches, are only to be used as a
‘last resort’. This directive also applies to contracted inspectors who are
employed by various State Governments.
6.139
Secondly, there are very few government
inspectors. The breakdown from the Department is as follows:
As at 30 June 1999, 156 departmental staff were involved in
[Office of Workplace Services] activities nationally, with 147 of those staff
operating in State, Territory and Regional offices. Of the total number of OWS
staff, 88 employees were Workplace Advisers appointed as inspectors under
section 84(2)(a) of the WR Act. Under a protocol agreed between the department
and the [Office of the Employment Advocate] 19 officers of the OEA were also
appointed as inspectors. In addition, 68 State Government inspectors in
Queensland, 16 in Western Australia and 28 in South Australia were appointed as
federal inspectors under S84(2)(b) of the WR Act.
As at 30 June 1996, 123 departmental staff were involved in
awards management activities with 85 per cent operating in State, Territory and
district offices. Figures are not available on how many of these staff were
appointed as inspectors.
The contracts require the relevant State authority to provide
federal compliance services in that State. Federal compliance is defined as
the investigation, resolution and were necessary, prosecution of alleged
breaches of awards, certified agreements, time and wage records and pay slip
regulations.
6.140
In delivering the federal services, officers of
the State authority appointed as federal inspectors have the same powers and
are subject to the same Ministerial Directions as inspectors directly employed
by the Commonwealth. Apart from the specific Queensland, Western Australia and
South Australia State based inspectors, it can be seen that there are only 107
inspectors in total in the federal arena and these must provide all of
the inspections services for federal matters in Victoria, New South Wales,
Tasmania, the Australian Capital Territory and the Northern Territory. It is
the combination of these two factors which clearly add weight to the
submissions opposing the provisions of the Bill.
6.141
Finally, the
Workplace Relations and Other Legislation Amendment Bill, as introduced by the
Government in 1996, contained identical proposals to limit union right of entry
to situations where a union member employed at the workplace had issued the
union with a written invitation. As with the current Bill, the 1996 Bill also
proposed that written invitations from employees would expire after 28 days.
6.142
However, the
Australian Democrats did not agree with these proposals in 1996, and insisted
on broader right of entry provisions that allow unions reasonable access to
workplaces not conditional on a written invitation. The compromise agreement
between the Government and the Australian Democrats resulted in the current
right of entry provisions in the WR Act.
6.143
It is clear that
the Government is not satisfied that the current provisions agreed with the
Democrats sufficiently restrict the ability of unions to investigate award and
agreement breaches, to meet with their members and to recruit new members. The
Government is putting forward the same proposals as it did in 1996, with no new
evidence justifying change.
6.144
The rest of this
Chapter deals with specific evidence relating to each of the main changes
proposed to the current right of entry provisions.
Invitation
from an employee
6.145
Currently, union officers may be authorised by
the Registrar to enter into particular workplaces to investigate suspected
award or agreement breaches, and to meet with their members. As long as the
union officer holds a current permit and gives 24 hours notice of their
intention to use their permit and exercise right of entry, then the officer may
enter the workplace without specific invitation.
6.146
The Bill would change the current arrangements
so that a union officer would require a written invitation from a member at a
workplace every time the union officer proposed to use their permit at that
workplace. Each written invitation from a member would lapse after 28 days.
6.147
The amendments are proposed on the basis that
unions should only be able to enter a workplace where employees at that
workplace want the union there to investigate a breach or to talk to the
employees. While this proposition may seem reasonable at an abstract level, it
ignores important practical problems:
- requiring an employee to issue an invitation in writing to their
union will discriminate against those employees from non-English speaking
backgrounds or with poor literacy skills, more than likely the very people most
in need of a union’s assistance;[72]
and
- requiring an employee to sign their name to an invitation will be
very intimidating for employees in workplaces where union membership is
discouraged. The Bill purports to establish a system of Registrar certificates
so that employees can remain anonymous, but this will not provide adequate
protection in small workplaces, where it would be more difficult to hide which
employee actually had the temerity to invite the union in to investigate a
suspected award breach:[73]
This clause, stripping workers of the right to remain anonymous
when seeking union assistance, will effectively mean that employers will be
able to pinpoint ‘troublemakers’ and potentially discriminate against them. It
will also mean that employees will be less willing to seek union assistance for
fear of retribution. This will particularly affect students and apprentices,
who often find themselves in intimidating situations and need the help of the
union to resolve them.[74]
Where employees have to have
a signed letter allowing a union official to come into their workplace to talk
to them, the dynamics of any workplace where the employer does not want the
union there would make it a very brave person to sign such a letter, especially
in a call centre where you are monitored consistently for statistics and
everything. If the employer wants to target someone, as they have done with our
union delegates, it is very easy to do so. It is very easy to put people under
a lot of pressure, especially if you are a casual where you do not really have
any job security. I think that it would be a very brave person to sign a letter
to let the union come in and speak to them just to talk to them about what their
rights are.[75]
...employees, particularly in small workplaces, where employees
are all personally known by the employer, may be intimidated not to offer an
invitation. Small workplaces dominate in areas of AMWU award coverage. For
example, in the printing industry 85.3% of employer establishments employ less
than 20 employees.[76]
6.148
Also of particular concern is the proposal that
an employee inviting a union to investigate a suspected award breach would be
required to provide details of the suspected breach and evidence likely to be
at the workplace in the invitation:
This requirement presupposes that every employee is capable of
fully understanding all of the terms of an award and the manner in which they
should be applied, and also, has the capacity to determine what constitutes a
breach of the award...employees complain tot heir union about matters concerning
award compliance, often without being able to identify a particular award
clause that may have been breached, or without being able to clearly articulate
why they have a concern about non-compliance with the award. Often employees
can do no more than say that they feel that they are being underpaid or that
their hours of work do not appear to match their wage rates, or that they feel
that the way the employer is treating them in terms of their wages and
conditions of employment, is not in line with the award. Employees invariably
have no idea of what evidence is required to support a prosecution for an award
breach and no idea as to where to find that evidence.[77]
s.285CA(1)(c) assumes employees are aware of their entitlements
and are able to detect a breach and have access to evidence establishing a
breach. This assumption is unsupported by evidence. For example, the
Commission, in determining the printing award simplification case, found ‘poor
language, literacy and numeracy skills are encountered on a regular basis’
Print R7898, p. 7. The Commission has also found: ‘many employers are unaware
of their award responsibilities and employees are not aware of existing award
entitlements’ Print R7898, p. 10. In light of this evidence, the union often
operates as an information agent for both employer and employees.[78]
6.149
The proposals to severely limit a union’s
ability to investigate award and agreement breaches is particularly disturbing
in light of the fact that the Government is no longer actively investigating
breaches or enforcing compliance itself. The Department provided evidence that
in the period between the commencement of the WR Act and 30 June 1999, the
Government received 12,951 allegations of non-compliance with awards and
agreements. Of these, it was determined that a breach had occurred in 8,270
cases. The Department also indicated that it had prosecuted the employers
involved in 11 cases, while the employees were forced to prosecute breaches
themselves in 752 cases.
6.150
The Government is clearly not ensuring that
employers comply with their obligations under awards and agreements. It was
difficult for the Committee to establish whether this situation has arisen simply
because of funding cuts to the Department of Employment, Workplace Relations
and Small Business, or whether this is a result of the Government’s policy to
contract compliance functions to State Governments with deficient monitoring of
performance standards.
6.151
Whatever the reason for this lack of activity,
the evidence indicates that the Government is failing to protect the rights of
employees, and in many cases the only organisations taking any interest in
enforcing awards and agreements are unions. The Textile, Clothing and Footwear
Union of Australia, who represent some of the most vulnerable employees in the
country, provided evidence that this was certainly their experience:
We estimate that 80 per cent
of inspections carried out (by the TCFUA) in New South Wales in any 12-month
period would uncover at least one award breach per inspection. It is really not
uncommon for our organisers to enter workplaces and find employers claiming
that they do not know the award exists and creating a whole lot of hurdles for
the union to jump over in order to actually get access to wage records.[79]
6.152
Even some employer groups submitted that unions
are vital to ensure compliance:
The proposed amendments make it increasingly difficult for union
officials to enter the workplace for the inspection of pay records, and these
people have been the only ‘enforcers’ since workplace inspectors have gone. The
enforcement provisions in the Act are minimal and the OEA has no power of
enforcement at all...the above proposal could have the effect of making low union
density industries employees more vulnerable.[80]
6.153
Another particularly worrying proposal is to
allow an employer or occupier to demand details of a suspected breach of an
award or agreement. It is reasonable for an employer to be kept informed about
alleged breaches, but there is no need for a provision allowing employers to
eject union officials where the employer forms the subjective view that the
union’s details of the suspected breach are inadequate:
Even where a union official is able to satisfy each of the
requirements of proposed section 285D(2B), that does not mean that the union
official will gain entry to the premises. Apart from the extremely onerous
nature of the proposed (section) the Government has further weighted the whole
process in favour of the employer by its proposition...that the employer can
prevent the union official from entering the premises by simply telling the
union official that the employer ‘is not satisfied that the person has complied
with the request (for details of suspected breach); or is not satisfied that
the person has provided adequate particulars in relation to the request’...The
employer has been given enormous power: the right of veto.[81]
6.154
The Department’s submission contains no
justification for this amendment, which would simply provide an avenue for
unscrupulous employers to entirely avoid any exercise of the right of entry
provisions.
Conclusions
6.155
The proposed amendments to require a written
invitation from a union member at the workplace prior to exercising right of
entry are clearly designed to prevent unions from accessing workplaces as far
as possible. The requirements will particularly disadvantage employees in small
workplaces, those with limited literacy skills and those whose employers actively
discourage contact with unions.
6.156
In the opinion of Labor Senators, these
vulnerable employees are already most likely to be affected by award or
agreement breaches, and the proposed amendments in the Bill will compound these
problems. Labor Senators are at a loss as to why the Government would attempt
to target vulnerable and disadvantaged employees in this manner.
6.157
The requirements for employees to identify
suspected awards breaches and evidence supporting the suspected breaches in
their invitation to a union can only be described as farcical. If employees
knew their rights under awards or agreements and how to collect evidence to
support prosecutions of breaches, then the employees would not need to invite
the union to investigate. It is precisely because employees are not always sure
of their award or agreement entitlements that they require the assistance of
unions.
6.158
It is vital that unions have unobstructed access
to workplaces to ensure that employers are not breaching their obligations,
particularly when the Government is not providing the resources to ensure
compliance.
6.159
Labor Senators are not convinced that employers’
privacy or rights are intruded upon by unions exercising right of entry to
investigate award or agreement breaches. The records inspected may nominally
belong to the employer, but the records are in reality the property of
employees. Individual employees can and do object to a union accessing their
records on grounds of privacy. The courts have already developed simple and
straightforward methods for dealing with such situations[82], and there is no need to
introduce bureaucratic and unworkable invitation requirements to protect
privacy.
6.160
In this regard, Labor Senators note that Liberty
Victoria, the Victorian civil liberties association, were satisfied that
current right of entry arrangements were sufficient to protect employees’
privacy:
If employees are in a
situation that they believe is dangerous or if something is going wrong in the
workplace, I think they should be able to get in touch with their union and the
union should be able to come in and have right of access in terms of
investigating those complaints. We are not talking about any kind of trivial or
unmeritorious complaint. We are saying that, as a general right, unions should
not have to go through a complicated process that really puts them in a
position where it is difficult for them to investigate various complaints or
breaches of health and safety regulations...[83]
Written
notice of entry
6.161
Unions are currently required to give employers
24 hours notice before exercising their right of entry to a workplace. The Bill
would impose more rigid requirements for this notice to be in writing and to
specifically state the date on which the union officer will be exercising the
right of entry.
6.162
Many submissions were concerned about the more
restrictive and formal requirements proposed in the Bill. There were also
concerns that notice requirements tend to frustrate proper exercise of the
right of entry:
Employers have used this notice period to their advantage, by
ensuring that when the authorised officer arrives that the employer is
unavailable and as a consequence the time and wages records are also
unavailable. Although the records should be available as requested, it is easy
for an employer to ensure that they are not available and to inconvenience the
authorised officer, who may have travelled considerable distances to visit the
site...The section has resulted in members requesting an authorised industrial
officer at very short notice in respect of a matter and find they are
constrained from having the authorised industrial officer enter the premises
and deal with the issue and thereby create instability within the workplace as
employees are frustrated from speaking with their industrial officer on site.[84]
The restrictive right of entry provisions are all designed to
hinder the union’s legitimate role to represent the concerns of their members.
Delaying or impeding a union official’s entry into the workplace will mean that
disputes will go unresolved leading to frustration and increased stress for
workers’...The provisions also give the employer crucial time to exercise undue
and inappropriate influence over the workforce.[85]
6.163
The Australian Manufacturing Workers’ Union
provided examples of employers clearly attempting to intimidate their employees
into not speaking with the union:
After the union advised the employer (Colourcorp Pty Ltd) about
the penalties for preventing a union’s rightful entry, the employer agreed to
allow the union onto the premises. A meeting with workers took place on the
site. The employer sent the Production Manager to the meeting. Despite the
presence of the Production Manager, some workers asked questions of the union.
The Production Manager took a list of names of those workers who asked
questions and following the meeting the managing director of the company
interviewed each of those workers as to why they had asked questions at the
meeting with the union.[86]
6.164
The Textile, Clothing and Footwear Union of
Australia agreed that in some situations, providing notice to employers is not
appropriate:
I will just give you a few
typical examples of the way in which employers in the industry try to lock out
the union. Some of the issues they raise are that the manager is not present
during the union visit, that the manager is not available for a number of weeks
or that wage records are kept with the accountants but the accountants are
unavailable for the inspection...Notices which have been sent by registered mail
to the correct address of the employers are sometimes returned to the TCFUA
when it is obvious to us that the envelope has been opened. Employers will
write to us advising that they have spoken to all their workers and none has
indicated they are members of the TCFUA when we clearly know that members work
there. These are examples of the way that employers have actually locked unions
out of workplaces where we have members. We really believe we need to have
immediate access to the workplace in emergency situations—that notice in certain
circumstances is simply not appropriate and that we need to actually get in
there as soon as issues arise.[87]
Conclusions
6.165
Labor Senators are not convinced that any case
has been made out for further complicating the notice requirements for right of
entry. The Australian Industry Group gave evidence that to its knowledge it had
never even taken action to enforce the current notice requirements under the WR
Act. This suggests that union officers are not currently abusing the right of
entry provisions and are in the main providing employers with the required
notice. Of course, some employers may not care whether union officers comply
with the current notice requirements – the Committee believes that in most
cases employers are happy for their employees to meet with their union and to
allow inspection of their time and wages records.
6.166
Those employers who do not have anything to hide
will not fear unions entering into their workplaces. Labor Senators would
expect that union officers simply provide notice to these employers as a matter
of courtesy.
6.167
However, Labor Senators believe that there ought
to be some exemptions from the general requirement to provide notice, where
employers are suspected of breaching award or agreement provisions.
Unscrupulous employers ought not to be given time to remove evidence of
breaches, or to create excuses to avoid inspection of their records.
6.168
There is also a case for allowing immediate
access of union officials to their members where members request this. For
example, this may be to advise or represent the member on disciplinary matters,
or the employee’s rights regarding proposals to alter working patterns or
shifts.
Employer designated meeting areas
6.169
Proposed subsection 285DA(2) would allow an
employer or occupier of premises to request a union officer entering the
workplace in order to hold discussions with employees to only conduct
interviews or discussions with employees in a particular room or area nominated
by the employer or occupier. If the union officer does not comply with such a
request, then the provision would prevent the union officer from remaining on
site.
6.170
Several unions provided examples of how some
employers have already attempted to restrict discussions with union to
particular areas of the workplace:
The employer (Scanlon Printing) refused the union its right of
entry despite several written requests in accordance with the Act. Finally,
after being informed the union might need to have recourse to the Commission,
the employer allowed the union onto the premises. The basis of the employer’s
refusal was that the union would not disclose the name of which employee had
requested the union to attend the premises. The employer briefed the employees
before the union’s arrival stating that although employees could meet with the union
they couldn’t do it privately. The union organiser was told to stand in a
corner of the factory floor away from where employees performed work, so that
any employee who approached the organiser would do so in full view of the
employer.[88]
...I have a lot of experience
of special rooms, and usually these special rooms are right next to the HR
manager’s office and usually, often, in a larger room with the HR manager or
the team leader sitting down the other end. I think any employee has got a
right to privacy, to discuss issues or concerns they may have in the workplace
without intimidation and without fear of their employers, knowing that they
will be crossing off their name to say that they went and met with a union
official and forever be under pressure because of that. I think this takes away
people’s basic rights to make an informed decision about whether or not they
want to be in a union.[89]
Conclusions
6.171
The Government has failed to provide any
justification for this proposed amendment. The proposal is clearly designed to
allow employers to intimidate their employees, to frighten them so that they
will not speak to union officers.
6.172
Some employers provided evidence indicating that
they were not so much concerned with unions entering workplaces to investigate
award or agreement breaches, but did not want unions entering workplaces to
hold discussions with and potentially recruit new union members:
...in Western Australia, a large number of our members operate
within the state jurisdiction and, to be perfectly honest, on many sites—and a
feature of the sites is their remote location; it is not easy to organise in
that kind of environment—unions are seen as quite irrelevant in large sectors
of our industry because of the difficulty of organising. So right of entry at
times is a concern for our members. We might have some officials from a union
that does not have award or agreement coverage on a particular site waltzing
onto a site and seeking to exercise right of entry, and that has occupied the
time of our members at times trying to discourage that kind of activity. It has
been more an issue where there has been attempted right of entry by
organisations that are not party to an award or an agreement or do not
necessarily have members on the site. That has been our experience of the
problems that we confront in terms of right of entry.[90]
6.173
In other words, the Australian Mines and Metals
Association is more than happy with a situation where employees cannot join a
union because of the isolated nature of the workplaces. In fact, AMMA are
concerned that unions may use right of entry provisions to make contact with
employees and allow employees to decide for themselves whether they want to
join the union.
6.174
These comments emphasise how the restrictions on
right of entry are used to prevent freedom of association. This is discussed
further below under ‘International obligations’.
6.175
However, it is important to note here that
employers who do not want a unionised workforce (possibly because evidence
demonstrates that unionised employees obtain better wages and conditions than
their non-unionised counterparts) would be able to use the new provisions to
frighten employees by directly monitoring contact between their staff and the
union.
Abuse of permit system
6.176
The Bill proposes to give the Commission wide
discretionary powers to deal with union officers who have breached any of the
new right of entry provisions by revoking or varying their permits. In general,
there was not a great deal of opposition to this particular amendment from unions,
most probably because unions are not abusing the right of entry permit system,
as suggested by the Government.
6.177
However, the fact that the Commission would not
be given equivalent powers to deal with employers who abuse the right of entry
provisions attracted considerable criticism:
I would be supportive of a
sin-bin for employers. We have provided evidence where employers are not even
complying with the current provisions about allowing right of entry for our
people. The evidence that we have provided shows that we have complied with the
current provisions about the required notice period, but we have seen actions
from companies, for example, Aristocrat, that changed the time of the meeting
on the notice so that when the union turns up, the meal break is over and done
with and we have been refused right of entry.[91]
The whole structure of the
Government’s approach to Right of Entry assumes that it is only unions who will
act in an improper manner, or who will abuse the permit system. However, from
experience, it is clear that employers may act in an improper manner when it
suits the employer, as a tactic to prevent or frustrate an effective Right of
Entry...There is no attempt by the Coalition Government to introduce legislative
provisions which would enable the Commission to make orders against employers
who act improperly or who act to obstruct or abuse the Right of Entry system
established under the...Act.[92]
Conclusions
6.178
There are already provisions in the Act which
allow the Registrar to revoke permits where union officers do not comply with
the current right of entry provisions, although evidence from employer groups
suggests that these provisions have probably not been used a great deal.
6.179
Labor Senators do not object to these powers
being given to the Commission, rather than the Registrar, and for the powers to
be extended to imposing conditions on permits, rather than simple revocation of
permits.
6.180
However, the Commission should also be given
complementary discretionary powers to deal with employers who abuse the right
of entry system. The Bill provisions currently target union officers in an
unfair and unbalanced way, whereas the evidence before the Committee clearly
demonstrates that employers abuse the right of entry system.
International obligations
6.181
Several witnesses suggested that the proposed
right of entry provisions would breach Australia’s obligations under the
International Labour Organization’s Freedom of Association and Protection of
the Right to Organise Convention No. 87. This Convention provides that:
Each member of the International Labour Organization for which
this convention is in force undertakes to take all necessary and appropriate
measures to ensure that workers and employees may freely exercise the right to
organise.[93]
6.182
The International Centre for Trade Union Rights
explained:
...Australia is obliged in international law to take all necessary
and appropriate measures to ensure that workers can freely exercise the right
to organise...Australia is also bound in international law to ensure that its laws
do not impair the right to organise...the 1996 Act already provides for a heavily
regulated scheme of access to workplaces for union representatives. The ICTUR
has submitted that the current provisions of the Act contravene the principle
of freedom of association in a number of respects...The provisions of the Bill,
however, are unbalanced and would result in an access regime which is
excessively geared in favour of employers and occupiers, in particular those
who wish to deny workers’ representatives proper access. If passed, the Bill
would see Australia commit serious breaches of its obligations concerning
freedom of association in international law.[94]
6.183
Other witnesses agreed:
Relevant obligations arise
from ILO convention 87, the freedom of association and protection of the right
to organise, and ILO convention 98, the right to organise and collective
bargaining. These require that governments guarantee access by trade union
representatives to workplaces so that they can communicate with workers in
order to apprise them of the potential advantages of unionisation. The
Workplace Relations Act limits this right to circumstances where a federal
award is already in place and a union has members at the workplace...We say that
the wording of section 285C is at odds with Australia’s international
obligations in relation to labour standards...the legislation seeks to go further
in restricting the right of representation of workers on site.[95]
The restriction on the right of entry provisions will seriously
prejudice the basic concept of freedom of association in the workplace.[96]
6.184
The Department, on
the other hand, did not address the possible implications of the proposed
amendments for Australia’s compliance with international obligations.
Conclusions
6.185
The Government uses rhetoric about protecting
freedom of association where it suits the Government’s objectives. However, the
Government’s rhetoric is clearly not matched by its actions in proposing
further amendments to restrict right of entry by union officials. If employees
are to be able to genuinely decide for themselves whether they want to be in a
union, then they need to be able to communicate with the union to assess the
union’s services.
6.186
It is not sufficient to simply assume that
employees will contact a union if they want to join a union, particularly in
workplaces where union membership is actively discouraged:
I am a clothing worker in a
factory in Melbourne. Because my boss did not pay us any annual leave loading,
we asked the union to come and help us in February this year. Our union
organiser tried to get into our factory to see us but for several months the
boss would not let her in. He locked the door. He would pretend he was not the
boss and would not let Jenny in. The workers were too scared to go outside the
factory to see Jenny. Many workers in my factory are scared to be in the union.
When I joined the union the boss said to me, ‘Why did you join the union? They
can’t help you. They just take your money.’...If they had to write a letter they
would be scared about that. They would not understand what was written down. It
is better for us to work together where we can speak in our own language...Many
workers are too scared to join the union because if the boss finds out he might
sack them. It is very difficult for workers who are scared and who do not speak
much English and who do not know their rights to stand up for themselves.
Please do not make it any more difficult for us.[97]
6.187
Labor Senators believe that the proposed
amendments to the right of entry provisions do not take account of the reality
facing many Australian employees – they may endanger their jobs by joining a
union. Employers have far more power than employees in the workplace, and if
the employer doesn’t want union involvement, then this can effectively curtail
their employees’ freedom of association.
6.188
The principal object of the WR Act purports to
‘ensur(e) freedom of association, including the rights of employees and
employers to join an organisation or association of their choice..’[98] However, the actual provisions
of the Act do not reflect this object, and the proposed Bill provisions would
make matters even worse.
6.189
The WR Act should have provisions to overcome
the power imbalance, to ensure that employees can exercise freedom of
association and to ensure that we comply with our international obligations.
Instead, the Government is proposing provisions to that will increase the
ability of employers to intimidate their employees so that they will not join a
union even if they want to.
Freedom of association
6.190
Schedule 14 proposes amendments to extend
freedom of association provisions in Part XA of the Act. It extends existing
prohibitions to cover a wider range of conduct in two significant areas,
providing for:
- removal from certified agreements and awards
provisions which encourage union membership, or which indicate support for
unionism or non-unionism; and
- prohibition of the establishment or maintenance
of a ‘closed shop’.
Union encouragement
6.191
The Bill proposes to amend section 298Z to
increase the range of objectionable provisions which are not allowed to be
inserted in or to remain in awards or certified agreements to include among
other things union encouragement clauses. The Minister In his second reading
speech the Minister justified this amendment with the announcement that ‘the
current prohibition against clauses in agreements which directly require union
preference will equally apply to indirect preference provisions such as union
encouragement or discouragement clauses.’
6.192
The specific amendments proposed by the Bill
are to amend sub-clause 298Z(5) and to insert two new sub-clauses 298Z(6) and
(7) and the heading of the clause is amended from ‘Removal of Preference
Clauses from Awards and Certified Agreements’ to ‘Removal of Objectionable
Provisions from Awards and Certified Agreements.’
6.193
Unions, union peak councils and some independent
academic specialists strongly criticised the proposed amendment to section 298Z
on a number of grounds including that the amendment would be inconsistent with
Australia’s international obligations to promote Freedom of Association through
to assertions that the proposed amendments were nothing other than an attempt
to frustrate union recruitment. Most employer organisations supported the
proposed amendments.
6.194
Currently, section 298Z operates to require the
Commission to remove from awards or certified agreements preference clauses
and, objectionable provisions. Section 298Z(5) defines objectionable
provisions to be those in awards or agreements that effectively require or
permit any conduct that would contravene this part. In other words, an
objectionable provision is a clause in an award or an agreement which requires
or permits conduct which would be unlawful conduct under the existing Freedom
of Association provisions of the Act.
6.195
The title of section 298Z being ‘Removal of
Preference Clauses from Awards and Certified Agreements’, gives a clear
indication as to how the existing clause will operate. Conduct by an employer
which gives preference to either non-union members or union members against
other employees, is clearly unlawful conduct under the Freedom of Association
provisions. Therefore, a Preference Clause in an award or agreement is a
clause which requires or permits conduct which would be unlawful under the
Freedom of Association provisions. Labor Senators accept the logic of
requiring the removal from awards or agreements of clauses which, if agreed to,
would contravene the Freedom of Association provisions.
6.196
In relation to the proposed Bill, the question
is whether the amendments to Sections 298Z seek to continue this logic, and
whether amendments designed to remove from awards and certified agreements, or
clauses which have the effect of permitting or requiring conduct, are in
contravention of the Freedom of Association provisions. The amendments will
require the removal from awards and certified agreements of clauses which deal
with matters such as union encouragement and discouragement where such action
is not of itself in contravention of the freedom of association provisions of
the Workplace Relations Act.
6.197
In other words, whilst it remains lawful for an
employer or any person to encourage or discourage a person from being a member
of a union, it will not be possible for a clause to be placed in an award or
agreement which refers to that legal conduct.
6.198
The clearest explanation of the impact of the
proposed changes to Section 298Z came from the Employment Advocate, in his
evidence to the inquiry:
My understanding of the changes that would be introduced by the
Bill is that it would still not be unlawful to either encourage or discourage
people to join a union. However, what it would do is prevent the inclusion
in certified agreements of provisions designed to do that now.
6.199
When asked to express a personal view about the
Bill, the Employment Advocate said,
I think it is important that Freedom of Association laws are
balanced. There is inherently nothing wrong with an employer encouraging or
discouraging union membership if they do it in a proper way. There will
sometimes be a bit of a grey area about what is proper. The principle, it
seems to me, should be that someone should not be victimised or lose anything
if they chose to do something different. But there is nothing inherently wrong
about an employer saying to someone, for example, ‘ ‘We think the Union is a
good organisation. Most people here belong to it. We negotiate with the
Union. We actually think it would be good for you and good for the company if
you joined.’ ‘ Inherently, in my view, there is nothing wrong with that. But
when you get to the point of saying, explicitly or implicitly, ‘ ‘But if you
do not join, you will not get a promotion’ ‘, or ‘ ‘don’t expect to have a long
career here,’ ‘ that is where it becomes a problem and that is what the
Legislation broadly expresses now.
6.200
The employment Advocate also said,
The Bill does remove the ability to put into a certified
agreement a clause that says the employer will encourage union membership.
6.201
In another comment on the Bill, the Employment
Advocate said,
Leaving aside whether it is a good or bad thing, I am just
saying it is not unlawful. I am not sure that you should try and make
something like that unlawful.
6.202
From the evidence, the Bill does not seek to
make unlawful the encouragement or discouragement of employees to join or not
to join a union. Its purpose is to prevent clauses from being inserted in
awards or agreements which refer to encouragement or discouragement of union
membership. Employers and employees may continue to encourage or discourage
union membership as they see fit, so long as they do not have a clause in an
award or agreement that refers to the legal activity of encouraging or
discouraging union membership.
6.203
If the conduct of encouraging or discouraging union
membership is not unlawful, then there appears no good reason for removing from
awards or certified agreements, clauses which refer to legal conduct. The
evidence presented in submissions from unions, union peak councils and some
independent experts, suggests that amendments to Section 298Z of the Bill have
the intention of attacking or frustrating the capacity of trade unions to
organise in the workplace.
6.204
With regard to certified agreements, a common
theme of union submissions was that these agreements represent the outcome of
negotiations entered into by the employer and the union and the workers. If a
union encouragement clause is placed in a certified agreement, and if that
clause does nothing more then reflect conduct which is lawful under the Freedom
of Association provisions, then there is no justification for the Government to
outlaw them. Not only is union encouragement activity not unlawful under the
current of Freedom of Association laws, but the Employment Advocate, who is
charged with responsibility for enforcing the Freedom of Association provisions
of the Workplace Relations Act, has made clear, that in his view, ‘There is
inherently nothing wrong with an employer encouraging or discouraging union
membership, if they do it in a proper way.’
6.205
It is clear to Labor Senators that the proper
way to encourage union membership is to have union encouragement clauses in
certified agreements. If union encouragement is currently not unlawful, and if
there is nothing inherently wrong with union encouragement activity then the
question remains as to why is it necessary to remove union encouragement
clauses from awards and certified agreements.
6.206
The Department, in its written submission,
paragraph 32 of B(xi) said of union encouragement or discouragement clauses,
Such statements can require the employer to pursue an active
role in the encouragement or discouragement of union membership. Such action
on the part of an employer will inevitably impact upon the freedom of choice of
some employers... (sic).
6.207
Because the Bill does not deal with the actual
conduct of employers in encouraging or discouraging union membership, the
removal of union encouragement or discouragement clauses awards and certified
agreements will not affect that conduct.
6.208
The real effect of removing union encouragement
clauses from agreements, was clearly explained in the submission from the
National Union of Workers:
It is not unlawful for an employer to discourage to union
membership. An employer needs no provision in an agreement or award to this
On the other hand, in the absence of some explicit statement, it is very
difficult for any positive view of union membership to be conveyed. It is true
that there are certain action that, if proved, are unlawful. However, there
are many ways in which discouragement or simply disapproval can be conveyed in
a workplace.
Such direct messages from an employer are powerful and
effective. The removal of the ability for the parties to agree to provisions
that encourage union membership leaves the field open to the anti-union
message. In similar vein, the SDA in their written submission said,
One purpose of Union encouragement clauses and clauses which are
designed to express support for workers being members of trade unions, is to
overcome a fear, whether rational or irrational, that many employees have that
they will be disadvantaged in their employment if they do exercise their
Freedom of Choice to join a trade unions.
6.209
Mr. Joe de Bruyn, National Secretary of the
Shop, Distributive and Allied Employees Association said in his evidence to the
inquiry,
We had used union encouragement clauses in our enterprise
agreements for a number of years. We have never viewed a union encouragement
clause as either being a defacto preference provisions, or a provision which
would in any way whatsoever act against workers who freely chose the SDA. In
our view, a union encouragement clause creates an environment in which workers
do not feel afraid to join a union. They realise the employer has no objection
to them joining the union and so they are free to make up their own mind on the
question of union membership.
The real proof that union encouragement clauses are not defacto
preference provisions or closed-shop arrangements is that we really have 100%
membership in any individual store where the union has an encouragement clause
in the enterprise agreement. Union encouragement clauses have never delivered
to us full membership. The union encouragement clauses do no more than create
an environment in which organisers and delegates can actively recruit union
members, without the employees being fearful that they may be victimised or
discriminated against by the employer if they choose to join the union.
6.210
While the stated intention of this Schedule is
to prohibit awards and agreements from containing either union encouragement or
discouragement clauses, it would appear that the real intention is to eliminate
union encouragement clauses from certified agreements.
6.211
The Department supplied no information showing
the prevalence of union encouragement clauses, or the existence of any union
discouragement clauses in agreements, although it appears to be the case that,
as the ACTU said,
the application of the prohibition to provisions and agreements
discouraging union membership is simply hypocrisy, ...., because such agreements
do not exist...
6.212
The political intent of the Schedule is far more
clearly evident than its intended effect on workplace relations in a narrow
sense. As the Secretary of the SDA explained to the Committee:
What the Government seeks to do by its changes in relation to
the so-called closed shop and union encouragement clauses provisions, is to
pervert the entire concept of Freedom of Association and in fact, lead to an
outcome where there is little real freedom to join unions and to where unions
are marginalised from the Australian Industrial Relations system.
6.213
For this reason Labor Senators oppose these
provisions in Schedule 14. They could not be expected to support legislation
which promised a return to days long past when employers were able to exploit a
workforce which was prevented from organising itself effectively to protect its
interests. The clauses in this Schedule relating to union encouragement
represent an incremental erosion of the rights of unionists.
Closed shops
6.214
The Bill proposes, through Item 34 of Schedule
14 to introduce a new Division 5A - Closed Shops into the Workplace Relations
Act. This Division will introduce new Sections 298SA and 298SB which prohibit
the existence of closed shops and define what is meant by a closed shop.
6.215
None of the unions or union peak councils
appearing before the Committee expressed any support for the concept of a
closed shop which involves coercive conduct against employees to require them
to join a union. Evidence given to the Committee indicated a reasonable
unanimity of views between unions, employers and the Government, namely, that
the concept of forced recruitment or forced membership in a union is a matter
which is not supported in the Australian industrial relations community.
6.216
Notwithstanding this, the submissions from
unions, peak councils and a number of independent experts severely criticised
the approach adopted by the Minister in introducing Division 5A into Part XA of
the Act. In the light of this consensus, Labor Senators are strongly of the
view that a prohibition is unnecessary, an opinion widely shared by
representatives of unions, peak employer bodies and independent academic
specialists who appeared before the Committee.
6.217
The record shows
that proposed closed shop provisions received little unconditional support from
witnesses and submissions to the Committee, even from those groups and
individuals who supported the legislation in general. Some employer groups were
concerned by the reverse onus of proof created by proposed subsection 298VA(4).
This subsection would provide that if a person has been found to have breached
the freedom of association provisions relating to coercion to join and
industrial association, then it is presumed that the person was engaged in
conduct with intent to establish or maintain a closed shop, or was knowingly
concerned in the establishment or maintenance of a closed shop, unless the
person can prove otherwise.
ACCI has always had concerns
about the drastic step of reversing the onus of proof and placing it on the
employer, and reiterates these concerns, although it is easy to make too much
of the point in this case because the extent to which it will operate is
strictly limited by a range of safeguards in proposed s.298VA(4).[99]
...this reverse onus creates a
situation where it is very difficult for persons to successfully defend
applications for interim injunctions, where the test for such injunctions are
that there is a serious issue to be tried and balance of convenience. Once an
interim injunction is made it can remain in place for many months and
detrimentally impact on the injuncted party to the extent there is little
choice except to settle the matter.[100]
6.218
The Australian
Industry Group opposed the provisions altogether:
The word ‘maintain’ could
refer to passive situation of allowing a situation to continue. This could mean
that an offence may be committed where an employer allows 60% of employees in a
particular group of employees to continue to belong to a union in circumstances
where it may be argued that it is reasonably likely that the employer may
prejudice an employee’s employment for not being a member of the union...These
provisions are too obscure and uncertain in relying on a hypothetical
assumption so as to constitute conduct that is proscribed by the Act. When
coupled with the presumptions and consequent change in onus in enforcement
proceedings...the uncertainty is magnified,[101]
6.219
An academic
specialist in industrial relations made a similar point:
There seems to be little
merit in these provisions. Protections against compulsory unionism already
exist in the Act. Moreover, the 60 per cent union density threshold that
contributes to the presumption of a closed shop has an element of bizarreness
to it...it would make just as much sense to set a 40 per cent density threshold,
below which there exists a prima facie case that an employer is operating a
non-union shop. Absent of such symmetry, the provisions would seem to be
intended no to promote freedom of association and free choice...but to shift the
balance of power.[102]
6.220
A union submission
pointed to the absurdity of the provision in these terms:
The IEU is concerned about
the proposed provisions relating to closed shops, in particular with the
ludicrous proposal that a workplace with 60% union membership could be
construed as a closed shop...If tests around whether membership was an express or
implied condition of (employment) could be met by employers encouraging union
membership by making forms available, inviting the union to speak at staff
meetings or induction days and offering pay roll deduction facilities, then
many non government education institutions could be deemed to be closed shops.
Such a situation would be preposterous.[103]
6.221
The Government’s
black and white view of industrial relations fails to take into account that
most employers are worldly–wise in their recognition of the importance of
industrial harmony. The closed shop provisions represent the conscription of
business in an ideological war against unions. This factor is alluded to in the
submission from the Queensland Government:
A more fundamental concern
is that these provisions make an assumption that a high level of union
membership is prima facie evidence of a closed shop. They fail to acknowledge
that in a number of workplaces both employers and employees recognise the
benefits of a highly unionised workforce. Rather than promoting an artificial
conception of unions as ‘third parties’, it should be recognised that unions
can and do play an integral role at the workplace and industry level to promote
improvements in productivity, innovation, employment and equity outcomes. To
suggest otherwise is purely an ideological viewpoint.[104]
6.222
The last comment
also reflected some genuine confusion about how the provisions would be
implemented by the Government. It was unclear whether the Office of the
Employment Advocate would commence investigations of workplaces where there was
evidence of more than 60% unionism, or whether this would not occur until there
was some additional evidence that a closed shop was being established or
maintained at the workplace.
6.223
Further, there
were some concerns about how the Employment Advocate would establish the level
of union membership in a workplace that was under investigation:
...to police this, somebody,
presumably government inspectors or perhaps employers, would have to compel
workers to indicate whether or not they were members of a union. How else can
you obtain the evidence that is needed to establish the so-called 60 per cent
rule? We would have the spectre of government inspectors...compelling workers to
provide evidence of their union status. I put to you: what if a worker says
that their union membership is their own private business...how does an employer
force workers out of the union if more than 60 per cent in a particular
workplace happen to be in the union? Does the employer sack unionists and only
hire non-unionists to lower the figure below the 60 per cent? Obviously the
sort of stuff we are talking about here is laughable. I say to you it is not
put forward presumably as a joke. I say it is a grave abuse of human rights if
it proceeds as intended.[105]
At Bunnings, we have to work
hard to enrol any employees into the union...for Ted to have achieved 95 per cent
union membership is a real achievement which owes nothing to any activities of
the company and owes everything to Ted and to his other delegates working on
the shop floor... The closed shop provisions of the Bill, if they are enacted,
could trigger unwanted, unwarranted and unnecessary intervention and
interference by the Employment Advocate in that Bunnings store in Adelaide,
thus significantly increase the difficulties imposed on Ted in exercising his
legitimate functions as a delegate attempting to recruit and maintain
membership levels in his store. Workers who had freely agreed to join the union
would feel intimidated into thinking they had done something wrong and would be
tempted to resign from the union to avoid further interviews and hassles from
the Employment Advocate.[106]
6.224
The fact that
there would be no converse presumption that a non-union shop existed if union
membership was below a certain rate was raised by several witnesses as an
indication that the provisions were, in reality, designed to prevent effective
unions from organising:
Closed shops: this provision
is a terrific one! I do not know how a place which could have 61 per cent union
membership could possibly be called a closed shop. Obviously, it is not—39 per
cent of workers there are not in the union. The provision could possibly be
theoretically justified if there was a converse proposition, so that if a
workplace did not have 40 per cent union members then the same presumptions
applied. You could then intellectually justify that sort of measure. But, without
the converse proposition, the measure has to be seen for what it is—that is, an
attack on workers’ ability to be in unions.[107]
6.225
Another way of looking at Section 298SA is to
see it not so much as a provision to secure convictions in the courts, but as a
law designed to create an environment in which the investigative processes
themselves become anti-union and act as a deterrent on union membership.
6.226
Some of the flavour of what may come is to be
gleaned from evidence from the SDA:
A feature of this definitional approach is that it will be
simple and easy for anti-unionists, e.g. the Government, the Office of the
Employment Advocate, or agent provocateurs, to make an allegation that the
second part of the definition of a Closed Shop exists. Once an allegation is
made in relation to a workplace with 60% union membership, investigations will
be launched by the Office of the Employment Advocate and all sorts of pressures
will be placed on employers and workers to reduce the level of membership.
6.227
In the near unanimous view of unions, union peak
councils and independent experts, it is alleged that the prime purpose of the
proposed definition of a closed shop is to enable an investigation to occur in
relation to a particular workplace. The clear emphasis in the respective union
submissions is that the definition of closed shop will enable investigations to
take place which will have the real effect of inhibiting or preventing
legitimate union activity aimed at recruitment of employees into a union.
6.228
Labor Senators note Government assurances that
even very high percentages of union membership in a workplace will not attract
the attention of the Employment Advocate in the absence of other evidence that
a closed shop is being maintained. Their objection to the closed shop
provisions are based on the trigger mechanisms through which an investigation
of an alleged closed shop will occur. It is clear, in view of Labor Senators,
that these trigger mechanisms will enable investigations to take place at
workplaces which merely have a 60 per cent union density level, which is quite
normal in many industries. Even if such investigations do not lead to
proceedings before a court, given the difficulty of proving the required
elements for a contravention of proposed Section 298SA, it is clear that the
mere undertaking of wholesale, wide-ranging investigations into ‘alleged’
closed shops, will, in the opinion of Labor Senators, act as a significant
deterrent to existing levels of unionisation and to recruitment of employees
into unions.
6.229
Given the opposition of many employers to these
provisions, it is unlikely that the Employment Advocate will receive much
encouragement to launch campaigns for union reduction in large and well-managed
firms. The concern of Labor Senators is that unscrupulous employers will use
the 60 per cent membership clause to incite an investigation for the purpose of
intimidating unionists and potential unionists. They have no confidence that
the Employment Advocate would not collude in this practice. If this occurs the
law will be seen to be highly discriminatory in its application, and for this
reason alone deserves condemnation as a potential legislative trigger for
perverting the course of justice.
6.230
The Ministers ‘last resort’ direction in
relation to the Department prosecuting award breaches contrasts with the
intrusive investigative style proposed here.
Conclusion
6.231
Labor Senators believe there is potential for
serious industrial relations consequences resulting from these intrusive
investigatory visits. The whole thrust of the proposals contained in Schedule
14 is highly unlikely to be provocative and so far as the majority of employers
is concerned, unnecessarily burdensome and contrary to good personal management
practices.
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