industrial relations

18 Mar 2008

Gillard's Union Brush-Off

By Mark Bahnisch

It looks like Labor has taken a leaf out of the Howard government's legislative book: draft quickly, amend at leisure, writes Mark Bahnisch

A Senate Standing Committee released its report on Julia Gillard's transitional IR legislation late yesterday, after the bill had been passed in the House of Representatives. The report - and responses to it - makes for interesting reading.

The Government has generally sought to establish an image of being open and consultative in this process. However, the pressure to pass the new legislation by Easter, and the Opposition's backdown on the issue, have both stoked suspicions that Labor might have taken a leaf out of the Howard government's legislative book - draft quickly, amend at leisure.

The broad outlines of the legislation had been clear since the release of Labor's IR policy prior to the election, but the devil is always in the detail when it comes to complex workplace legislation. In a real way, the report is a test both of the Government's attitude to the legislative process and of its relationship with the union movement.

Thanks to Fiona Katauskas

The report puts to rest some of the furphies that have dominated debate on WorkChoices - through the rather clever tactic of citing evidence from DEEWR on productivity - where slow rates of growth have coincided with the AWA regime. Productivity failed to accelerate after WorkChoices came into effect - in fact its rate of growth fell further. Government senators were quick to seize on advice from the Department that collective bargaining would have an anti-inflationary effect, to counter the claims made by the Opposition that the abolition of WorkChoices would initiate a new cycle of wage-push inflation. That's a very useful contribution to the debate, and transcends the political arguments made in the majority report about the evils of WorkChoices - a vein that has well and truly been mined by now.

But while the report pays lip service to concerns expressed by unions and expert witnesses, it was left up to Democrats Senator, Andrew Murray, and Greens Senator, Rachel Siewert, to urge the Government to amend the bill so as to immediately entrench unfair dismissal provisions and modify the award modernisation process to include a continuing role for test cases and the safeguarding of gender equality.

Siewert said she was disappointed the Government would only consider making minor changes to the bill: "It seems to be following what the previous Government did, which is put a bill in and try and ram it through the Senate and not accept amendments that come out of the committee process," she said.

While unions will be happy with the increased access to the ear of Government senators and weight placed on their submissions, they probably won't be overjoyed by an apparent brush off of their substantive concerns by Gillard.

The Deputy PM has stated that she expects the legislation to pass, with perhaps some technical amendments, in the remaining three sitting days this week, which doesn't bode well for a revival of a genuinely bicameral and inclusive parliamentary process under Labor. Gillard will characterise any amendments offered by the Opposition as "dithering" and "obstructionist", but her response to amendments offered by Democrats and Greens - based on union concerns - will be the true test.

This raises the broader question of the position of the union movement under the Labor Government - a Government which has nothing in place remotely akin to the Accord process which gave the ACTU so much influence under Hawke and Keating and which appears reluctant to even allow the formal consultative process entrenched in the ALP constitution. We're very far indeed from the claims that a Rudd Government would be dominated by union bosses, and perhaps that line of attack allowed those within the Government who'd like to distance the ALP from the unions to seize the day.

Unions did not expect a land of milk and honey under Kevin Rudd, and nor is there much support within the union movement for the sort of close corporatist embrace that characterised the Accord - long recognised by key players as being a double-edged sword for unions in that it tied their fortunes to the political stocks of the Labor government and downplayed grassroots organising in favour of top level negotiations. Although obviously the ‘Your Rights at Work' campaign didn't have to carry the Labor party along in its wake once Beazley left the leadership, the significance of preliminary academic research, finding it made a sizeable contribution to Labor's victory last year, hasn't been missed.

Key figures in the union movement believe their future influence rests more on the ability to mobilise public sentiment than to directly influence legislation. Your Rights At Work was really an exercise in the sorts of community campaigns unions had been running successfully both here and overseas for some time - writ large. While the union "brand" still carries more of a negative connotation than unionists would like, the big lesson of Your Rights At Work was that fundamental and deeply ingrained sentiments in public opinion - particularly around fairness - have great force if channeled effectively.

Potentially, some union effort will be directed towards going with the grain in terms of the current political, social and economic climate - for instance in focusing on redistribution in fiscal policy and on the potential for industrial democracy in workplaces. Unions aren't facing the sorts of snubs and locked doors characteristic of Blair's regime in the UK, but there is a recognition that unions will not have a seat at the decision making table and will need to campaign in order to advance their agenda. It will be fascinating to see how this plays out.

While unions have an obvious stake in the re-election of the Rudd Government, their ability to fill in some of the blank spaces in its policy framework - through mobilising community opinion rather than relying on the ALP-union link - shouldn't be discounted.

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monkeyjedi 18/03/08 2:02PM

Another issue not being reported in the media is the fact that this ‘Forward with Fairness’ bill DOESN’T destroy the possibility of AWA’s still being in use.

Existing AWAs can continue up to and even beyond their five year expiry dates, and workers can still be offered a new type of individual workplace agreements called an ITEA (individual transitional employment agreement).

Employers have still been able to rush through new AWAs that can fail the No Disadvantage Test and still bind workers for another five years.

The Rudd Government is being portrayed as the slayer of Work Choices, when in fact they are ignoring some fundamental flaws in their own legislation.

Mark Bahnisch 18/03/08 3:23PM

I’m in a bit of a hurry, monkeyjedi, but you might like to follow the link to the report where that issue was canvassed by government senators and a reply received from the Department. Sorry I can’t be more helpful with a page number and remembering what the reply was, but I’m in the middle of doing about a thousand things!

monkeyjedi 18/03/08 3:57PM

Hi Mark
That’s ok - I understand how busy you must be.
I assume you’re referring to this section:

How long will AWAs and ITEAs be able to continue?

1.76 The second reading speech notes that AWAs made prior to the implementation date of the proposed legislation will continue until their nominal expiry date and beyond until the parties to the AWA make a decision about how to best manage their employment arrangement. [55]

1.77 The media has similarly reported that AWAs and ITEAs could continue indefinitely unless the employee or employer terminates them after the nominal expiry date.[56] Ai Group told the committee in Sydney:

…one very important element of the legislation is that existing agreements remain in place, and both AWAs and ITEAs continue independently after expiry, which we believe to be a very important part of the transitional arrangements, and one of the key reasons why we believe this is workable. It is not giving people the ability to opt out of existing agreements, and if people are happy with them they can continue on independently after expiry.[57]

1.78 The ACTU expressed concern that the bill does not immediately abolish statutory individual agreements and suggested the bill should provide a mechanism for existing AWAs to be terminated prior to their nominal expiry date where the AWA is disadvantageous to the employee.[58]

1.79 In response to this issue, DEEWR advised the committee that AWAs and ITEAs would continue to operate until terminated or replaced and that either party can terminate an individual agreement following its nominal expiry date with 90 days notice. DEEWR further advised that:

The point is that eventually, and not too far into the future, these individual statutory agreements will be phased out. So after 2010, there are no new individual statutory agreements available and you cannot, for example, vary these instruments after that point. Those alternatives might be common-law contracts but there is also the collective agreement. Eventually these individual statutory agreements will become very out of date and you would expect the employer and the employees to not want to remain on them.[59]

1.80 The committee majority notes that the Opposition ran a defensive line on this question during the hearings. There is no doubt that an Opposition returned to government in the next few years would re-introduce a form of individual agreement, presumably backed by some kind of incentive together with impediments to collective agreements. They remain committed to AWAs, notwithstanding the evidence that these instruments have stripped the pay and conditions of hard-working Australians.

1.81 The committee believes that, in the drafting of the substantive bill, consideration should be given to allowing employees to unilaterally terminate their individual agreements as soon as a collective agreement that would cover them has been negotiated in the workplace. Employers who have entered into the new collective agreement could be considered to have consented to any employee who could be covered by the collective agreement opting out of the individual agreement.

This still doesn’t address the fact that there are a large number of AWA’s that have been implemented post election but pre ‘Forward with Fairness’ that will be able to be continued for quite a long time.
It’s an important fact that shouldn’t be overlooked, and all the media reportage that AWA’s are ‘dead’ is wrong. ‘Sleepy’ is more like it. :)

Mark Bahnisch 18/03/08 4:10PM

Thanks, monkeyjedi. That’s it.

I agree it’s a very important point that’s been overlooked - though it was one highlighted by the unions!

curaezipirid 18/03/08 4:31PM

That’s cool information which the mainstream media are missing: about collective bargaining lowering interest rates, and workchoices having failed to "accelerate productivity".

Its the obvious fact to those of us who really are fully financially dependant upon our own labour. (I include myself in that even though I am a pensioner: but mainly because my social value, and therefore self esteem, are maintained by my labour alone, independantly of any monetary income) But it is not always obvious to us ordinary ‘working-class’ folk, that the far right wing of politics don’t notice the obvious.

However, it ought to be told also, that despite the journalism of authors like Mark Bahnisch, keeping the pressure on the ALP where in needs to be, its a bit of a stretch to say that the Howard regime of fast moves in legislation drafting, will be sustained by the ALP. Surely it is more important to get that inflation down fast with some expedient legislation right now, than to draft it word perfect before being able to implement it.

However, that said, it’s an important point that we need to avoid the fault of letting politicians fail to work the legislation until it is word perfect. Why else do we vote Lawyers into parliament? The skill required of them is to be able to navigate every paragraph, sentence, phrase, and word, right through every of its possible false implications, until all false implications are weeded out.

Basically, if the ALP politicians of the Whitlam era, had not been good at their job, we might not still have most of the social justice values being held to, which that era of politics heralded.

If legislation is "transitional", and named as transitional within the actual legislation, then of course the ALP will be moving to make it thoroughly and permanently binding before their first term is up.

What is wrong with using language that says a piece of drafted legislation is "transitional" but for a "fixed term", within which the "full level of regulation of more effective operational legislation" (or words to that effect), has to be put into place.

Neat article, thanks

Word Sword Sworn
At Hath
That Hat
Inshallah no poetry farce
By Solomon’s Seal will my past
No word not true can last

Mark Bahnisch 18/03/08 5:40PM

Surely it is more important to get that inflation down fast with some expedient legislation right now, than to draft it word perfect before being able to implement it.

I should clarify - there may well be technical problems with the drafting, but what I’m really getting at is problems with the intent and operation of parts of the bill - which the Senate committee process has drawn attention to, but which are receiving only lip service. It shouldn’t have been impossible to act speedily to foreclose the AWA option and combine that with a broader process of consultation in the lead up to the bill’s introduction, if the problem was the possibility that the Senate timetable would delay the effect of the bill. So I suspect it’s more a matter of the ALP wanting to maintain "balance" and "distance" from the unions. Maybe that’s a politically astute thing to do, but, you know, what about the workers? ;)

revilo 18/03/08 10:18PM

OK Julia is’nt the champion of the Unions they were hoping for.
Remember Kev 07 made her take on two portfolios: Education and IR.

If education is to succeed she can’t very well give the Teachers Union carte blanche,Then they’d have it so that the kids’ laptops were getting a workout all day long whilst teachers were obliged to go to stop work meetings an then go on strike when they didn’t get their way.

I can remember some of the futile and stupid causes they went in to bat for…particularly if they were leftwing and anti-American and Anti Jewish causes.

So maybe Julia has tweeked to the idea that it’s no use if a parasite kills its host, if there is’nt another host to latch on to just yet.

monkeyjedi 19/03/08 11:44AM

Rachel Siewert has a post on GreensBlog about the changes to Industrial Relations - here.