Introduction
The new proposed changes to the law for collective bargaining for workers proposed by the ACTU has a lot to recommend it. However, it is asking for a lot all at once, and some portions are problematic. However, the Issue paper from the ACCI uses flawed logic to support its opinions. One has to take a close look at both association documents before making a decision on which portions to support. The ACTU proposal is good for the worker for the most part, but it may be pie in the sky as far as getting it introduced into law. While Australian workers certainly need many of these changes, there are far too many arguments against them to hope for easy adoption.
This paper will examine the documents from the ACCI and the ACTU and compare their points along with some of the current literature on collective bargaining. We will examine the pros and cons of each of the main proposed changes to the law as far as benefits and costs to our communities, and the arguments proposed against them.
The Current State of Affairs
The current state of affairs for workers and unions in Australia are woefully out of date. Collective bargaining and union organization is hampered by a collection of law and circumstance. The most affected workers are the low-income unskilled workers.
“Throughout most of the twentieth century, awards of the industrial relations tribunals were the major source of legally enforceable conditions of employment in Australia. Since the late 1980s, enterprise bargaining has been introduced in federal and state jurisdictions but has continued to operate alongside the more traditional, although altered, award system.” (Mortimer and O’Neill 2007).
The “Work Choices” reforms of the Howard government did no favours for the workers, and the situation and standard of living for the lowest-paid unskilled workers are worse than ever. Many workers are just making the legal minimum wage and their benefits are practically non-existent. In addition, home workers and part-timers can be paid on a piecework basis. Instead of progress, we have rolled back the law concerning the rights of workers. ‘From award restructuring in the 1980s through to the 1996 Workplace Relations Act, the goal of greater productivity has dominated the workplace and called into being continuous reforms’ (Morris, 1999:3). What few laws of protection exist have no teeth. It is definitely time for some change, but how much?
The Proposed Changes
Collective Bargaining
This is the major area for proposed changes. The ACTU wants to establish a new system for collective bargaining protected by legal rights of association which would include:
- The right for employees to bargain collectively for wages and benefits over and above the minimal safety net provided by law.
- A system to enforce good faith bargaining on both sides
- The rights for employees to be represented by a union
- The rights of the union to represent all workers in the workplace who so desire and should benefit accrue non-members the right to require the collection of representation fees in lieu of union dues
Rights to Good Faith Collective Bargaining
In the issue article by the ACCI, there are numerous objections to this part of the proposed legislation. They allege that the ACTU document is trying to imply that there has been no collective bargaining. In reading the document it is very clear that the ACTU is merely proposing a new system of collective bargaining, not as they say, “proposing the new system be rebuilt on the old blueprint.” (ACTU 2006) There is clear evidence that this is needed. The ACCI also complains that the new proposal could force people to accept collective bargaining. This is true, but only as called for by an umpire. The ACTU cited Canada’s successful practice of calling for collective bargaining and added that they wanted to make sure that the law had teeth by adding penalties if they refused good faith bargaining and that not liking collective bargaining was not to be considered sufficient reason. The ACCI claims that “Bargaining under compulsion, under forced disclosure of information and under threat of arbitration denies an employer the right to only reach agreements that they consider to be in their interests.” Well, fancy that! Of course, it prevents the company from only reaching agreements acceptable to them. That is the point of the proposal. The companies have been only accepting deals that are agreeable to them, and the workers are left out in the cold. This merely gives workers a say. (ACCI Issues Paper 2006).
There is also a provision that would prohibit companies from making separate deals with non-union members in order to bust the union and private or one on one meetings would also be prohibited. This sounds extreme until you read the ACTU’s description of why it is needed and how it will work. Then it becomes totally logical as a way to prevent the companies from using these tactics to intimidate workers or to break the union. Even the UK provides for prevention of using these tactics, and it punishes offences as it did in 2006. “Retailer Asda was recently ordered to pay £850,000 to 340 employees when it was found to have unlawfully tried to persuade employees to give up collective bargaining rights (Davies and Ors v Asda Stores Ltd; 2006 ET 2501510/05) Setting and enforcing penalties that induce compliance will be important.
McCallum deplores the Howard changes to the law as they rolled back workers rights and gave all the power to industry:
“These laws, which are set out in the Workplace Relations Act 1996,5 facilitate employer control in several ways: by curtailing the powers of the Australian Industrial Relations Commission (the federal Commission); by the establishment of freedom of association provisions that outlaw all forms of trade union security; by making it easier for employers to make arrangements directly with their employees free from trade union interference; and by providing for statutory individual agreements known as Australian workplace agreements (see Australian Journal of Labour Law 1997; Riley 1997; Mac Dermott 1997, 1998; Coulthard 1999; McCallum 1997, 2001).” (McCallum 2002).
The ACCI document warns that the outcomes of collective bargaining can be compelled by third parties. This is, in fact, true. The law in Canada allows for the umpire to compel the parties to accept a decision reached by an arbitration committee, which has been used to decide the first contract after a deadlock was reached. So yes these are third parties, but the plan for the make-up of the arbitration committee would follow the Canadian pattern with members from all interested parties is included. This simply prevents protracted strikes or bad faith bargaining. The ACCI also complains that the new legislation would decide how employers to bargain. This is a good thing, since it prevents unfair labour practices, employee intimidation and compels good faith bargaining.
The Rights of Workers to be Represented by a Union
The ACCI opposes compulsory recognition of unions as representatives for collective bargaining. It complains that the union only needs half of the workers to be members in order to force collective bargaining and force the company to accept them as representatives of the workers. This is another point that makes one a little tempted to sarcasm. Well yes, that is the idea of the proposed legislation, to stop companies from ignoring the wishes and needs of the workers. The ACCI complains that companies will then be compelled to accept the union as the sole representative of the workers and that it will also be prohibited from making separate deals with non-union workers. This again is preventing union-busting. In fact, the workers who do not join the union will be assessed a fee equivalent to the union dues as compensation for this representation. They get the benefits won there-by, the negotiator has the right to be paid. Otherwise, it kills the union even though good bargains for the workers were achieved. So what is to prevent the employers from reverting to the old wages after it kills the union? Recognition of the union by employers is key to equitable power for the workers.
Even the US, which is woefully behind in acceptable protection for workers compelled a company to bargain with the union after it acquired a plant because it hired all union members who had worked for the previous owner. The company had thought that the Burns rule exempted them because it says that new employers can set the conditions of hire. However, the US Court ruled that there was no provision allowing the company to ignore the union when it was plain that all of its workers were members. (Monthly Labor Review 4-2000) The Organizing Improvements Bill of 2007 in the US finally eliminated the protracted vote for the recognition of the unit once it has a majority of workers signed. (Organizing Improvements Bill 2007) The U.S. also enacted a “Secret Ballot” Act for union membership voting in order to combat industrial intimidation of workers in 2005. (Almond et al 2005).
New Tribunal Powers
The ACCI is opposed to the establishment of a tribunal that will have the power to order good faith bargaining and when that fails, order arbitration. This need seems a bit obvious since it is a remedy for the possibility that companies could let negotiations go on and on forever otherwise. It is certainly far less costly to keep a few people in endless meetings than to grant fair wages and benefits to all workers. If the company had to pay all workers double wages while negotiations continued, the unions and workers would be eager for negotiations to continue with no intention of reaching an agreement. That is what the establishment of a tribunal with power will prevent.
The ACCI cited bad decisions by the current system as a reason for keeping it. “Decisions of the Australian Industrial Relations Commission after the introduction of enterprise bargaining in the early 1990s (such as the Asahi Case) confirmed the right of an employer to say ‘no’ to over-award bargaining demands and to not have them arbitrated by an industrial tribunal. This new approach turns sensible decisions like that on their head.” (ACCI Issues 2006) They also imply that the forced decision in the case of bad faith bargaining would be made by the tribunal: “The new power of an industrial tribunal to determine the outcome of a disputed (forced) negotiation is the most regressive aspect of the policy announcements.” (ACCI Issues 2006) The truth is that the tribunal can only require binding arbitration and the arbitration committee would be made up of representatives from all the stakeholders, including the company.
Another citation of existing wrongs followed in the ACCI paper: “Giving increased power to unions and industrial tribunals to compel bargaining above minimum standards ignores modern labour market realities. Only one in ten workplaces have union members. Less than one in five private-sector employees are union members. Over one million non-union agreements have been made between employers and employees over the past ten years and more than half a million of those still exist.” (ACCI Issues Paper 2006) Yes, this is true. It shows just how powerful the companies have been in keeping workers from joining unions and in preventing the negotiation of new contracts. Workers have been forces to accept the status quo in fear of losing still more. That some wrong has existed for a long time does not make it less wrong. It does show how successful employers are under current law in intimidating workers. They claim that forced collective bargaining would cause more strikes, but that has not been shown as the case where equitable and enforceable laws are in force.
Collective Bargaining Flexibility
“Allowing pattern bargaining means that the right to strike would be able to be applied against all employers in an industry – resulting in industry-wide close-downs for which there could be no sanction against the union for the economic damage caused.” (ACCI Issues Paper 2006) This is actually not the case. The proposal sets out a set of circumstances when this type of bargaining will be sought, but the interests of all stakeholders must be considered.
“Consistent with the principle that parties should be free to determine the level at which they bargain, multi-employer collective agreements (a single agreement binding more than one employer) should be available where the parties agree to bargain at that level. Where a multi-employer agreement is proposed but the claim for such an agreement is contested, the Commission should have the power to determine whether a multi-employer bargaining process should proceed, and determine who the bargaining parties will be.” (ACTU, 2006).
In such cases, the unions would apply to the commission and the criteria for decisions by the commission are clearly set out to cover all the interested parties, including the community. This is far from the arbitrary rule that the ACCI implies.
Rights for Protected Industrial Action
One concern that the ACCI mentions that may have some basis or scrutiny of this proposed legislation concern the expansion of protected industrial actions. This seems not to be clearly defined in the ACTU proposal. Therefore, there is no real definition of what “Protected Industrial Action” is, nor is there any real restraint on the unions for calling for it. There should be a provision for union members to vote and a prohibition of strike while a tribunal judges that the initial collective bargaining is proceeding in good faith. Since the proposal makes provision for trained union representatives among the workers, one of the duties of these stewards could be to ascertain the will of the workers, not the unions or the employers. This is what should govern any legal actions. However, as in Canada, other types of actions, besides strikes, are available, such as “work to rule” actions or refusal of overtime and even partial rotating strikes. Actions that qualify as protected industrial action should be defined for both the unions and the companies and there should be clear rules on when they can be applied.
Conclusions
There is a definite need for reform. The careful analysis of both the ACTU proposal and the ACCI objections put forth shows that the majority of the proposals are not only logical and lawful but also very necessary. The ACCI mostly cites that the status quo has existed for a long time as a reason to refuse change. If we follow that reasoning, then we will eventually be back to the sweatshops of two centuries ago. Corporations are interested mostly in their profits, and few care a great deal about their workers. Money seems to drive the power to take actions that are clearly wrong. This paper has shown that the ACCI objections are, for the most part, without merit. In the one place where the ACCI may have a point, this can be remedied by making clear and carefully considered definitions and regulations to govern the use of protected industrial action.
It is agreed that these proposals would, indeed, make Australia possibly the most regulated country in the world for labour relations. However, this is not necessarily bad. It is not the degree of regulation that counts, but the quality of regulation and the tools in place to make the implementation of this regulation smooth and timely. The more clearly one defines the rules which govern adversarial actions, the more productive they are likely to be.
References
ACCI Issues Paper, 2006, Australian Chamber of Commerce and Industry, Web.
ACTU, 2006, A Fair Go at Work, Web.
ALMAND, M.R., 2005. Employers and Unions Face Off on Capitol Hill Over Secret Ballot Elections. Venulex Legal Summaries, , pp. 1-2.
Australian Journal of Labour Law. 1994. Special issue containing articles examining the Industrial Relations Reform Act 1993 (Cth) which amended the Industrial Relations Act 1988 (Cth). 7 Australian Journal of Labour Law, 105–226.
Australian Journal of Labour Law. 1997. Special issue containing articles examining the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). Australian Journal of Labour Law, 1–157.
BLOOM, H.M., EGAN, P.L. and PAYSON, M.F., 2000. Unions Can Organize Temporary Employees Along with Regular Workforce. Venulex Legal Summaries, , pp. 1-4.
COULTHARD, Amanda. 1999. “The Decollectivisation of Australian Industrial Relations: Trade Union Exclusion Under the Workplace Relations Act 1996 (Cth).” Employment Relations, Individualisation and Union Exclusion: An International Study. S. Deery and R. Mitchell, eds. Sydney: The Federation Press, 48–68.
LAMONT, S., 2002. Time to change law on union members rights. Personnel Today, , pp. 20.
MAC DERMOTT, Therese. 1997. “Industrial Legislation in 1996: The Reform Agenda.” 39 Journal of Industrial Relations, 52–76.
MAC DERMOTT, Therese. 1998. “Australian Labour Law Reform: The New Paradigm.” 6 Canadian Labour and Employment Law Journal, 127–145.
MCCALLUM, Ron. 1996. “The New Millennium and the Higgins Heritage: Industrial Relations in the 21st Century.” 38 Journal of Industrial Relations, 294–312.
MCCALLUM, Ron. 1997. “Crafting a New Collective Labour Law for Australia.” 39 Journal of Industrial Relations, 405–422.
MCCALLUM, Ron. 2001. “Introduction.” Butterworths Industrial Law Federal. Sydney: Butterworths, 1011–1025.
MORTIMER, D. and O’NEILL, B., 2007. Is Enterprise Bargaining Meeting the Needs of Employers and Employees? The Case of Family-Friendly Working Conditions in the Australian Retail Industry. Employment Relations Record, 7(2), pp. 63-84.
Organizing Improvements Bill 2007, Pipeline & Gas Journal.
RILEY, Joellen. 1997. Workplace Relations: A Guide to the 1996 Changes. Sydney: The Law Book Co.
SPOONER, G., 2006. Persuasion Doesn’t Pay. People Management, 12(6), pp. 21-21.