Chapter 12 - Conclusion
Introduction
12.1
This Chapter summarises the main amendments
proposed to the WR Act by each major Schedule of the Bill, refers to the
substantive discussion of the amendments in other chapters of this report and
summarises the Labor Senators’ recommendations on each of the main amendments.
Schedule 1 – Objects of the Act
12.2
The Bill would amend the principal object of the
Act in several areas:
- Item 1 would reinforce the presumption in favour of State
regulation and prevent employees from transferring to the federal jurisdiction.
The proposal is discussed in Chapter 7 ‘The needs of workers vulnerable to
discrimination’ and Chapter 10 ‘Victorian workers’.
The Labor Senators reject the proposed amendment and consider
that the federal jurisdiction should remain open to those employees covered by
State awards and agreements and the Victorian minimum conditions in Schedule
1A, where the Commission decides that this is appropriate.
- Item 3 would oblige the Commission and the courts to stop
any industrial action not taken in accordance with the complex procedures
established in the Act and proposed under the Bill for ‘protected’ industrial
action. The operation of the current provisions of the Act regarding industrial
action and the proposed amendments in the Bill are discussed in Chapter 6
‘Balance and bargaining’ and in Chapter 3 ‘International obligations’. Item 3
would also insert a reference to the proposed system of secret ballots into the
principal object of the Act. A substantive discussion of the secret ballot
amendments is contained in Chapter 6 ‘Balance and bargaining’.
The Labor Senators reject the proposed amendment to the
principal object, as we do not support the introduction of secret ballots, or
the further restriction of the ability of workers to take industrial action to
advance their claims in bargaining. The provisions of the Act restricting
industrial action are in breach of Australia’s obligations under international
labour conventions, and the amendments proposed by the Government would
compound these breaches.
- Item 4 would amend the principal object to reflect the proposed
dichotomy of voluntary and compulsory conciliation by the Commission, and would
provide that the Commission’s compulsory arbitration powers are only to be
exercised as a last resort. A substantive discussion of the proposals is
contained in Chapter 4 of this report ‘Standing of the Australian Industrial
Relations Commission’.
The Labor Senators do not agree with the proposal to restrict
the Commission’s conciliation powers to situations where all parties agree to
conciliation. This would simply result in those parties to industrial disputes
with greater bargaining power refusing to agree to conciliation. This will
create more protracted industrial disputes, which are not beneficial to the
national economy or the parties involved.
- Items 2, 5, 6 and 7 would amend the principal object of the Act,
and the objects of the Act regarding dispute prevention and settlement, to
state that the role of awards made by the Commission is only to provide a
safety net of basic minimum wages and conditions, and to ensure that awards do
not provide for wages and conditions above the safety net and that the
Commission cannot maintain internal relativities in awards. These amendments
are considered in Chapter 4 ‘Standing of the Australian Industrial Relations
Commission’ and Chapter 7 ‘The needs of workers vulnerable to discrimination’.
The Labor Senators reject the proposed amendments regarding the
role of awards. The Commission should have the broad discretion to establish
and maintain a fair and comprehensive award safety net, which provides
sufficient protections and conditions for award reliant employees, and provides
a fair and relevant standard against which agreements are tested.
Schedules 2, 4, 5 and 6 – Australian Industrial Relations Commission and
Awards
Schedule 2 – Australian Industrial
Relations Commission
12.3
The main amendment in Schedule 2 of concern to
the Labor Senators is contained in item 18. This amendment would introduce fixed
term appointments for Commissioners. A substantive discussion of this amendment
is set out in Chapter 4 of this report ‘Standing of the Australian Industrial
Relations Commission’.
12.4
Other amendments in this Schedule, to change the
name of the Commission and to require compulsory retraining programs for
Commissioners, are indicative of the Government’s general contempt for the
Commission.
The Labor Senators reject the amendment to introduce fixed term
appointments to the Commission, as this would undermine the independence of and
public confidence in the Commission.
Schedules 4 and 5 – Conciliation
and mediation
12.5
Schedule 4 would restrict the ability of the
Commission to conciliate industrial disputes to those disputes involving
‘allowable award matters’ and other limited matters. The Commission would be
able to conciliate other matters, but only with the consent of all parties to a
dispute and only on a cost recovery basis - the Commission would be required
to charge a fee of $500 to provide ‘voluntary’ conciliation services, in order
to allow private sector mediation firms to compete with the Commission.
Schedule 5 would formally legislate a role for these private sector mediation
firms.
12.6
Chapter 4 ‘Standing of the Australian Industrial
Relations Commission’ discusses these proposed amendments in more detail.
The Labor Senators reject the proposed amendments to restrict
the Commission’s conciliation powers and to introduce fees for conciliation.
Where one party has more bargaining power than another, this would be unfair
and could result in protracted industrial disputes. Fees would tend to
disadvantage vulnerable workers and would discourage the use of conciliation as
a quick, non-legalistic means of resolving disputes. The Labor Senators do not
regard the amendments in Schedule 5 as necessary – mediation is already
available to those parties who want to use it as an alternative to the
Commission’s procedures.
Schedule 6 - Awards
12.7
The amendments in Schedule 6 would further
reduce the list of allowable award matters in section 89A of the WR Act, and
would specifically provide that a range of other matters are ‘non-allowable
award matters’. Proposed amendments to section 111AAA would also prevent
movement of workers under State jurisdictions and Victorian workers into the
federal jurisdiction.
12.8
Chapter 4 ‘Standing of the Australian Industrial
Relations Commission’ discusses the proposed amendments to cut back awards,
particularly in relation to training, long service leave and tallies. Chapter 7
‘The needs of workers vulnerable to discrimination’ also discusses the proposal
to remove training clauses from awards and considers the impact of the proposed
amendments on parental leave clauses established under the Commission’s
Parental Leave Test Case. The particular effects of the proposed amendments to
section 111AAA on Victorian workers are discussed in Chapter 10 ‘Victorian
workers’.
The Labor Senators reject the proposed amendments to awards. It
is imperative that the Commission is empowered to maintain a fair, relevant and
effective safety net. Many Australian workers continue to rely on awards to set
their terms of employment, as they are unable to access enterprise agreements.
Arbitrary removal of award provisions seriously disadvantages these workers,
who have little opportunity to regain lost conditions through agreements. Also,
arbitrarily reducing the contents of awards undermines the no-disadvantage test
and reduces the standards against which agreements are tested.
The Labor Senators do not agree that section 111AAA should be
limited to prevent workers under State jurisdictions or Schedule 1A to the WR
Act from seeking federal award coverage. In particular, Victorian employees are
working under seriously substandard terms and conditions, and the Commission should
have the ability to apply awards, and the federal safety net, to these
employees.
Schedule 7 – Termination of employment
12.9
Schedule 7 proposes unfair and unbalanced
amendments to the termination and unfair dismissal provisions of the WR Act.
The amendments would allow employers to seek punitive costs orders against
employees who make unfair dismissal claims, would prevent workers who are
forced to leave their jobs as a result of sexual harassment or bullying from
seeking compensation for constructive dismissal, and would attempt to limit
employees from engaging legal representation where they do not have enough
money to cover a lawyer’s costs at the time of the claim.
12.10
The amendments would further complicate
administrative procedures for employees who make unfair dismissal applications,
particularly regarding time limits.
12.11
These amendments are discussed in detail in
Chapter 7, ‘The needs of workers vulnerable to discrimination’ and Chapter 9,
‘Job security’.
The Labor Senators reject the proposed amendments. They would
have the effect of preventing low paid and disadvantaged employees from seeking
compensation when they are unfairly dismissed, and will therefore promote job
insecurity and unfair dismissals. The amendments would also adversely affect
women and younger employees who are mistreated at work to the point where they
are forced to resign. The Government should be ashamed of the proposals in
Schedule 7.
Schedules 8, 9, 11 and 12 – Bargaining and industrial action
Schedule 8 – Certified agreements
12.12
The main amendments that would be made by
Schedule 8 are:
- introduction of new mechanisms for certifying agreements without
a public hearing and allowing certification by the Industrial Registrar, rather
than the Commission. These amendments are discussed in Chapter 4, ‘Standing of
the Australian Industrial Relations Commission’ and Chapter 7, ‘The needs of
workers vulnerable to discrimination’.
The Labor Senators reject the proposed amendments. They would
reduce the standing of the Commission, and allow discriminatory agreements to
go unchecked, further disadvantaging women and other vulnerable workers.
- allowing certified agreements to be made only covering part of a
workplace, and prohibiting multi-employer agreements. These amendments are
discussed in Chapter 6 ‘Balance and bargaining’ and Chapter 7 ‘The needs of
workers vulnerable to discrimination’.
The Labor Senators reject these amendments. Allowing certified
agreements to cover only part of a workplace will potentially lead to
discrimination against particular employees or groups of employees. The current
requirement that a certified agreement apply to all those employees who could
reasonable expect to be covered ensures that groups of workers are not excluded
for discriminatory reasons. The amendments will also undermine the bargaining
power of employees, allowing employers to separate groups of workers with
industrial strength and ensure poorer outcomes for those with reduced
bargaining power. The amendments to outlaw multi-employer agreements will have
negative impacts in major sectors of the Australian economy, including
construction and natural resources.
Schedule 9 – Australian Workplace
Agreements
12.13
Schedule 9 would considerable alter the
procedural requirements for AWAs. AWAs would commence on the day that they were
made, rather than after assessment to ensure compliance with the
no-disadvantage test. This would mean that AWAs that do not pass the
no-disadvantage test could operate for periods of up to 60 days. Schedule 9
amendments would remove the application of the no-disadvantage test to
agreements covering employees with a total remuneration package of more than
$68,000.
12.14
The Schedule would also provide that AWAs have
primacy over certified agreements and awards, and would remove the Commission’s
involvement in scrutinising AWAs where the Employment Advocate is not certain
whether they pass the no-disadvantage test.
12.15
These amendments are discussed in detail in
Chapter 3 ‘International obligations’, Chapter 6 ‘Balance and bargaining’ and
Chapter 7 ‘The needs of workers vulnerable to discrimination’.
The Labor Senators reject the amendments. They will allow
unscrupulous employers to abuse AWAs, potentially even allowing employers to
circumvent the no-disadvantage test entirely, particularly for short term and
casual workers and those on salary packages above $68,000. The amendments would
also compound the Government’s breaches of international labour conventions
relating to collective bargaining, by giving individual agreements primacy over
collectively negotiated agreements. The removal of the Commission’s role
regarding AWAs is a further unwarranted attack on the standing of the
Commission.
Schedule 11 – Industrial action
12.16
Schedule 11 contains amendments to various
provisions regulating the situations in which industrial action can be taken in
support of claims for wages and conditions. The main amendments are:
- to allow employers easier access to section 127 orders, and to
prevent employees and unions from obtaining section 127 orders against
employers except in the case of unprotected lock outs. This is discussed in
Chapter 6 ‘Balance and bargaining’.
The Labor Senators reject these amendments. They are unbalanced
and would tend to give employers more bargaining power at the expense of
employees. The new provisions would require the almost automatic issuing of an
order to stop industrial action, even where it is unclear whether the action is
protected or not, and even in cases where industrial action is not occurring,
but may occur at some unknown time in the future.
- to prevent employers from paying employees who take industrial
action for a whole day, even where the industrial action may have only taken
place for a few minutes. This amendment in discussed in detail in Chapter 6,
‘Balance and bargaining’.
The Labor Senators reject this amendment. It is not supported by
employers or employees, as it would be unfair and would encourage employees to
take longer periods of industrial action.
- to repeal section 166A which
requires conciliation by the Commission before an employer can seek common law
damages against a union for taking industrial action. This amendment is
discussed in Chapter 6 ‘Balance and bargaining’.
The Labor Senators reject
this amendment. It is not supported by many employers, who value access to
conciliation to settle damaging industrial disputes. The amendment would create
a more legalistic and less cooperative industrial relations system.
- to require automatic suspension of bargaining periods on
application after industrial action has been taking place for two weeks, and to
further restrict the circumstances in which the Commission can terminate a
bargaining period and arbitrate under section 170MX to settle a dispute. These
amendments are discussed in more detail in Chapter 3 ‘International obligations’
and Chapter 6 ‘Balance and bargaining’.
The Labor Senators reject the proposed amendments. They would
significantly disadvantage employees and unions in negotiations with employers
for agreements, and would result in further breaches of Australia’s obligations
under international labour conventions. The amendments would also prevent
employees who are particularly disadvantaged in agreement negotiations from
accessing arbitration where their employers are refusing to bargain in good
faith.
Schedule 12 – Secret ballots
12.17
Schedule 12 would introduce a complex and
prescriptive system of secret ballots that would be required before any
employees could take protected industrial action under the WR Act.
12.18
The proposed ballots would require the employees
or union proposing industrial action to specify the precise nature, form, dates
and duration of any industrial action in an application to the Commission,
would prevent any industrial action relating to multi-employer agreements, and
would require unions and employees to meet part of the costs for these ballots.
12.19
The proposed amendments are discussed in Chapter
3, ‘International obligations’, Chapter 6 ‘Balance and bargaining’ and Chapter
7 ‘The needs of workers vulnerable to discrimination’.
Labor Senators reject the proposed system of secret ballots. It
is very prescriptive compared with other secret ballot systems (such as that
operating in the United Kingdom), so much so that it would simply prevent
protected industrial action from occurring. The prescriptive nature of the
ballots, and the extensive requirements for applications and ballot papers in
writing would tend to discriminate against those employees from non-English
speaking backgrounds or with limited literacy skills. The amendments would also
breach Australia’s obligations under international labour conventions.
Schedule 13 – Right of entry
12.20
The Bill would prevent unions from exercising
right of entry unless given an invitation in writing from an employee at a
workplace who is also a member of the union. These written invitations would
automatically lapse after 28 days and would be required regardless of whether
the union exercised right of entry to meet with union members or to inspect
suspected award or agreements breaches.
12.21
The Commission would also be given wide-ranging
discretion to make orders against union officers who ‘abuse’ the right of entry
permit system, but the Bill contains no equivalent provisions for employers who
abuse the right of entry permit system.
12.22
These amendments are considered at length in
Chapter 6 ‘Balance and bargaining’, and also in Chapter 3 ‘International
obligations’.
The Labor Senators reject the proposed restrictions on union
right of entry. The amendments would hamper unions in their efforts to ensure
that employers comply with their obligations under awards and agreements, at a
time when the Government is dedicating very few resources to compliance
activities. The amendments would also breach Australia’s international
obligations and would prevent people who are not union members from meeting
with union representatives, unfairly restricting their freedom of association
rights under the WR Act.
Schedule 14 – Freedom of association
12.23
The amendments proposed in Schedule 14 of the
Bill would create a presumption of a closed shop at workplaces which have more
than 60% union membership, prohibit union encouragement clauses in awards and
agreements and would also prohibit ‘restrictive arrangements’, such as the
Homeworkers’ Code of Practice.
12.24
The proposed amendments are considered in
Chapter 6, ‘Balance and bargaining’.
The Labor Senators reject the proposed amendments in Schedule
14. The ‘closed shop’ provisions would discourage union membership, and would
potentially create a situation where the Office of the Employment Advocate would
investigate and intimidate employees and employers in workplaces with more than
60% union membership. A workplace without 100% union membership is by
definition incapable of being a ‘closed shop’. The proposed amendments to
outlaw union encouragement clauses were rejected by the Australian Democrats in
1996, and should be rejected again. The proposed amendment regarding
‘restrictive arrangements’ could operate in practice to outlaw cooperative
arrangements to ensure decent working conditions for vulnerable employees, such
as outworkers.
Schedule 15 – Victorian workers
12.25
The Bill makes some limited technical
improvements to conditions for Victorian workers who are covered by the five
minimum conditions of employment in Schedule 1A to the WR Act. The Bill would
also remove entitlements to sick leave and annual leave for casual and seasonal
workers in Victoria. The amendments are discussed in Chapter 10 ‘Victorian
workers’.
The Labor Senators support the minor technical improvements in
Schedule 15, but consider that Victorian employees should have access to
federal award safety net standards. The current situation of two different
federal industrial relations systems and standards is inequitable.
Schedule 16 – Independent contractors
12.26
The Bill proposes to repeal sections 127A-C of
the WR Act, which allow the Federal Court to review unfair and harsh contracts
for work that would otherwise by undertaken by employees. The amendments are
discussed in Chapter 11 of this report, ‘Independent contractors’.
The Labor Senators reject the proposed repeals. The removal of
these sections would allow employers to unfairly engage people to perform work
at conditions below award safety net standards, and leave employees with
limited or no recourse to review. This amendment would particularly affect some
of the most vulnerable workers in the textile clothing and footwear industry.
Recommendation
Labor Senators recommend that the Bill be withdrawn and that the
Act should be amended in accordance with the recommendations outlined in the
Overview.
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