|
|
|
|
|
|
|
|
|
|
|||
|
||||||
|
||||||
|
|
|
|
|
|||||||||||||||||||||||||
|
 About Us  About Unions NSWAbout UnionsWho's WhoInformation Centre What's Going On? Annual Reports   
|
|
|
Labor Council Submission on Workplace Relations Amendment Bill 2000Posted: 25 May 2000Author: Unions NSW
SummaryUnions NSW submission to the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee Inquiry into the Workplace Reations Amendement Bill 2000.
Summary· Labor Council submits that the Workplace Relations Amendment Bill 2000 before this Committee poses serious threats to the well-developed notion of 'equality before the law' as it impacts unequally against the rights of industrial organisations of employees to represent the interests of their members. The attempt to define pattern bargaining and provide defined consequences where pattern bargaining occurs is one example of this inequity. · The proposal to outlaw pattern bargaining flies in the face of the objectives of the Act which will advantage employers whilst disadvantaging unions and employees. · The Bill also introduces further limitations on the ability of the independent umpire ( the Australian Industrial Relations Commission) to hear Section 127 applications. In this regard, the circumstances when union members could take protected industrial action would be restricted. · The proposal to protect rights to pursue common law remedies in response to unlawful industrial action opens the way for the Federal system of Industrial Relations to become a litigious playground to settle differences between employers and unions that may occur in a single workplace. · The Unions NSW is strongly opposed to the Workplace Relations Amendment Bill 2000 and urges this Committee to reject the passage of the Bill. Pattern BargainingThe definition of pattern bargaining set out in new Section 170 LGA would capture almost all union collective bargaining. The Bill would make it virtually impossible to take protected industrial action in support of claims being pursued throughout an industry or in the workforce generally, even though a separate agreement is negotiated at each enterprise. This bill would effectively outlaw pattern bargaining by unions. On the other side, employers and their representative bodies would remain free to pattern bargain as they like. This approach is biased towards employers and stands in stark contrast to traditional Industrial Relations practices in New South Wales. According to leading IR academic John Buchanan at a recent ACIRRT conference, employers, rather than unions, have led the led the way in pattern bargaining, winning major concessions as a result. Contrary to the public rhetoric on the subject[1] Buchanan's research had found that employers initiate four times as many pattern agreements as unions. It has been widely accepted that effective bargaining requires enabling unions and their members to campaign around issues of concern in their particular industry. Employers, as well as employees, rely on assistance from unions and employer organisations in relation to claims and agreements, including model agreements. To make sense of current developments in enterprise bargaining, it helps to categorise enterprise agreements as union-driven or employer-driven, and the overwhelming majority are the latter. According to Buchanan, employer-driven bargaining flows from competitive pressures. If, for example, a major retailer won significant change, this would quickly be mimicked by its big competitors, and would then flow on into the distribution and transport sectors. Employer-driven pattern bargaining isn't confined to the enterprise agreements sector (both union and non-union). A key point here is that employer pattern bargaining also extends to individual agreements - petition-style and tailored agreements. Employers are using enterprise agreements to win dramatic offsets, while paying low to moderate increases of 2% to 4% a year, according to Buchanan. They have achieved a second wave of longer and irregular hours and made a significant portion of employees' pay contingent on performance. Key sectors where employer-driven enterprise agreements are setting the pace include retail (with increases around 3% a year), non-banking finance (3.5% to 4%) and metalliferous mining. Industry-wide bargaining is the most effective way of pursuing issues of common concern and general relevance, while not precluding enterprise-specific negotiations. In retail, employers are still using enterprise agreements to adjust the highly-flexible hours arrangements they won in the early to mid 1990s, while in finance, insurance deals with flexible conditions are putting pressure on the banking sector. Union-driven agreements have also shifted their focus to the total package and away from wages. The level of job insecurity in the Australian workforce has lead to a significant shift in bargaining priorities for unions. We have seen a rise in agreements addressing job security - with clauses prescribing staffing levels and regulating numbers of casuals, contractors and labour hire employees. In some states such as Victoria, there has been an emerging push for shorter hours. We feel that the proposed amendments relating to pattern bargaining have been spurred on by Minister Reith's ideological response to the recent Victorian Building and Construction Industry dispute. While this move is designed to attack the power of Victorian building unions, all workers will be affected, from finance sector employees seeking family friendly practices to artistic performers seeking industry-wide standards. Industrial ActionThe Bill also includes a provision requiring the Australian Industrial Relations Commission to have particular regard to the views of the employer in its decisions. In what would be an example of complete hypocrisy, the current Minister himself would oppose any such provision if applied in reverse under a Federal Labor Government. If there is any compulsion to consider views, it should remain that the Commission should be able to consider the views of all parties. The Bill also introduces further limitations on the ability of the Australian Industrial Relations Commission to hear Section 127 applications. In this regard, the circumstances when union members could take protected industrial action would be restricted. The Minister is proposing to politicise the powers of the 'independent umpire' to influence outcomes in favour of employers and there is no justification for further restrictions on the taking of lawful industrial action. Under the proposal to amend the current Section 127 (3), the new subsection (3) would require the Commission to hear and determine an application (including the issue of whether or not the industrial action is not, or would not be, protected) within 48 hours of it being made. If this is not possible, the Commission would be required to issue an interim order within 48 hours to stop or prevent the industrial action, to have effect until the application was determined, unless satisfied that this would be contrary to the public interest This proposal would have the effect of preventing the taking of protected industrial action. All an employer would be required to do on receiving 72 hours notice for the taking of protected action, would to make an application to the Commission for an order under section 127. This would mean the Commission loses its discretion when hearing Section 127 applications. It is evident that the amendments to Section 127 will have adverse effects for unions and employees in the bargaining context. The imbalance in the bargaining relationship is highlighted further in these current proposals which allow employers greater control to influence and determine the outcome of a Section 127 application before the Commission. The proposal to protect rights to pursue common law remedies in response to unlawful industrial action opens the way for the Federal system of Industrial Relations to become a litigious playground to settle differences between employers and unions that may occur in a single workplace. This is an example of the flaws in the existing legislation in that the Act espouses enterprise-based bargaining however opens the gates for enterprise issues to be dealt extensively and unnecessarily in the Courts Jurisdiction of the Federal CourtThe Minister has made no secret of a
preference for state Supreme Courts, out of a belief, that these courts are
more likely to grant injunctions to employers seeking to stop industrial
action. The proposal to insert a new Section 170MTA is an unjustified attack on
the jurisdiction of the Federal Court. This would have the effect of preventing
the Court to granting anti-suit injunctions to prevent a state Supreme Court
from dealing with matters under the Act, even where these were already issues
before the Court. This proposal stems from events surrounding the MUA case in 1998 and must be seen in the context of the public vilification of the Federal Court which has accompanied its decisions since that case. Interference with the jurisdiction of the High Court, of the type proposed in relation to the Federal Court, is not possible because of the constitutional guarantees of High Court jurisdiction. Thus, the principle of non-interference with the jurisdiction of the High Court should also apply to the Federal Court. ConclusionIn conclusion the Unions NSW endorses the submission of the Australian Council of Trade Unions and urges the Committee to recommend that the Bill not be proceeded with in the Senate. [1] http://www.workplaceexpress.com.au/workplace/ne_customnews.newsMgt
|
|
|
Home | Contact | Feedback | Sitemap | Privacy Statement |
|
© Unions NSW 2001. URL: http://council.labor.net.au/industrial/public/workplsubm20000525.html
Unions NSW is proudly created, designed and programmed by |
 |
 |
  |
