CHAPTER 4
Changes to the System and its Institutions - Part C
C. OTHER INSTITUTIONAL CHANGES
1. AIRC - OTHER CHANGES
4.294 The Bill provides for the abolition of the Bargaining Division
of the Australian Industrial Relations Commission. The Government regards
a separate bargaining division as no longer necessary in view of the
much clearer delineation of awards and agreements and the inefficiencies
which the current provisions have caused for the Commission. [116] The Bill also removes the obligation
on the President of the Commission to form industry panels. In directing
the work of the Commission, the President will be required to seek to
achieve efficiencies through complementary arrangements with State tribunals.
4.295 The ACTU disagreed with this position. It argued that there are
a number of functions removed from the Commission's powers which should
be retained. These specifically include:
- Division 2 of Part VIA of the Act which empowers the Commission
to make orders to ensure that women receive equal remuneration for
work of equal value in over-award areas;
- section 166A relating to the role of the Commission prior to the
commencement of legal action by employers in the face of industrial
disputes, including secondary boycotts;
- the ability to deal with claims relating to termination on certain
grounds based on discrimination, trade union activity and refusal
to negotiate for an AWA, as well as claims in relation to notice not
given. [117]
Conclusion
4.296 As has been indicated elsewhere, the expansion of the options
of agreement-making that the Bill envisages places greater focus on
the protections that the system can provide. Consistent with the view
of the majority of the Committee that there should be pre-implementation
vetting of agreements as part of the process, the processing of such
agreements provides an important element in the protection. In this
regard, these Bill's proposals suggest a greater need for a discrete
Division of the Australian Industrial Relations Commission to deal with
bargaining matters, and not a lesser need as is implied in the Bill.
The views of the majority of the Committee on the importance of the
supervision of the bargaining process also highlights this view.
4.297 The majority of the Committee recommends that the Bargaining
Division of the Commission be maintained.
4.298 The Australian Democrats member of the Committee agrees with
this analysis but has additional comments in his Supplementary Report.
4.299 Government members of the Committee disagree with the above
conclusion and oppose the recommendation.
Funding Cuts
4.300 According to the submission from the Department of Industrial
Relations, the total appropriation for the Australian Industrial Relations
Commission and the Australian Industrial Registry in 1995-96 was $47.6m.
The Government proposes to reduce running costs by 10%, in addition
to a 3% service-wide saving requirement, and a 3% portfolio saving requirement.
The end result is anticipated to be an annual ongoing saving of $6.7m
(a potential total of 16%). [118]
4.301 The Government argues that funding cuts to the Australian Industrial
Relations Commission are consistent with the reduced role that the Commission
will play in awards, bargaining and dismissals given the increased access
to State jurisdictions.
4.302 The Australian Chamber of Commerce and Industry supported these
arguments. [119]
4.303 The Tasmanian Chamber of Commerce and Industry was not satisfied
with the current level of access to the AIRC available to Tasmanian
parties:
Given Tasmania's relative isolation from the major population centres
and therefore the majority of members of the Australian Industrial
Relations Commission (AIRC) and given that until very recently there
has been no member of the AIRC resident in Tasmania we have been something
of a 'poor relation' in respect to service by the AIRC. [120]
Conclusions
4.304 The importance that the majority of the Committee places on the
role of the Commission in providing employees with protection, especially
in relation to award making and agreements, is clear from our other
recommendations. The ability of the Commission to effectively undertake
this role is dependent on appropriate funding. The Committee is not
in a position to make a judgement about the existing and potential levels
of funding. However, the majority of the Committee is concerned that
the Government has said that funding can be justifiably reduced because
of the reduced role that it envisages for the Commission. Given our
view that the role of the Commission should be broad and robust, this
is an alarming development.
4.305 Government members of the Committee disagree with the above conclusions.
2. THE EMPLOYMENT ADVOCATE
4.306 Under the new legislation, the Office of the Employment Advocate
will be established as within the Department of Industrial Relations.
4.307 The role of the Employment Advocate will be, among other things,
to:
- provide advice and assistance to both employers and employees about
award and statutory entitlements;
- provide a free grievance investigation service;
- handle alleged breaches of AWAs;
- handle complaints of undue pressure or influence; and
- handle freedom of association grievances.
4.308 The Minister will be able to give directions 'specifying the
manner in which the Employment Advocate must exercise or perform the
powers or functions of the Employment Advocate' (Bill, Schedule 3, section
89BC).
4.309 Most employer groups see the role of Employment Advocate as a
protection against exploitation through provision of independent advice
to both employees and employers. [121]
4.310 This view was not shared by all who gave evidence to the Committee.
Concerns were expressed in two areas: firstly, that for a number of
reasons, there was no need to create a new Office of Employment Advocate,
and secondly, that the Office as created by the Bill could potentially
suffer through conflict of interest.
4.311 The unions believe that the fact that it will have the dual roles
of advising both employee and employers is a potential conflict of interest.
In addition, pursuing an employee's complaint through to court proceedings
by the Employment Advocate is not guaranteed and, given that resource
allocation will be at the discretion of that office, it is questionable
whether many actions will be carried out. The Victorian Trades Hall
Council concludes that the Employment Advocate office will be a 'toothless
tiger'. [122]
4.312 The ACTU argued in its submission to the inquiry that there is
no need to create a separate office of Employment Advocate because all
of the functions proposed for that office are already performed by other
bodies. In particular, the ACTU notes that the advisory and investigatory
functions could be carried out by officers of the Department of Industrial
Relations, as is currently the case; and that the Australian Industrial
Relations Commission should continue to carry out the registration of
agreements. [123]
4.313 This view was also proffered by Emeritus Professor J E Isaac
who questioned the need to create a new office 'when the Australian
Industrial Relations Commission, with its experience in awards and agreements
could be used for the purpose of filing of agreements and providing
expert scrutiny'. [124]
4.314 Ms Barbara Pocock, an academic at the University of Adelaide
Centre for Labour Studies, suggested that, given the weak powers invested
in the Employment Advocate and the lack of capacity to scrutinise Australian
Workplace Agreements or protect against discrimination and unfair contracts,
there was no need at all to create such an office. [125]
4.315 The United Trades and Labor Council of South Australia, which
also suggested that there was no need to create another industrial relations
instrumentality, pointed out that its creation would further contribute
to the fragmentation of industrial relations agencies with which people
would have to interact and would only serve to increase both confusion
and costs.
4.316 Finally, the Australian Road Transport Industrial Organization
argued in evidence to the Committee that, given that the record of the
Federal Department of Industrial Relations inspectorate has been so
inadequate, it had no confidence that the Department of Industrial Relations
would be able to adequately resource and staff an Employment Advocate
office. The Association argued that to adequately provide for all the
requests for information and assistance throughout Australia, there
would have to be offices in all states and in regional areas. The cost
of this, the ARTIO believes, would be prohibitive. [126]
Quite frankly, ARTIO does not believe that the government can adequately
resource and staff the office of the Employment Advocate. We make
that conclusion based on our experience with the functions and operations
of the Department of Industrial Relations and the former inspectorate
services. We also say that, for it to be successful, it would have
to be national - not only national, because you would also have to
provide regional services to major population centres. [127]
4.317 The ability of the Minister to give directions to the Employment
Advocate was also a matter of some concern. The South Australian Employee
Ombudsman, Mr Gary Collis, considers that one of the important features
of the South Australian system is the independence of the Office.
Therefore, people can approach my Office secure in the knowledge
that I am not subject to the direction of either the Government or
the employers. I am therefore able to assist them with their Agreements
and any other related problems without them fearing that I am promoting
a particular objective. [128]
4.318 Professor McCallum endorsed this view stating that the various
undertakings of the position required the Employment Advocate to be
seen as beyond political and industrial interference. He concluded:
'In my opinion, it would be preferable to follow the South Australian
model and to make the Employment Advocate wholly independent from Ministerial
control. It is vital for this office to be - and to be seen to be -
above politics.' [129]
Conclusion
4.319 Given the majority of the Committee's view on the desirable role
of the Commission in the pre-vetting of agreements, the majority of
the Committee does not see a role in this regard for the Employment
Advocate. The importance of ensuring an independent process that is
accountable and transparent highlights this point. We have formed the
view that the generally recognised confidence in the Commission is principally
because of procedures that are open and transparent. The impartial nature
of the quasi-judicial proceedings, the right of all with a sufficient
interest to intervene and be heard, the ability to seek redress for
perceived errors and the ease of the process all lend themselves to
a public confidence that is important to ensure that people can feel
sufficiently confident to use and access the system. There is a good
argument to say that rather than restricting access to bargaining, these
processes assist it.
4.320 As to the other functions proposed for the Employment Advocate,
the majority of the Committee believes that there are considerable problems
of conflicts of interest. The first important example is the Advocate's
role in both advising and enforcing. The second important example is
the Advocate's function of advising and representing both employers
and employees. We believe these conflicts will inevitably compromise
the Employment Advocate.
4.321 In addition, the other functions envisaged for the Employment
Advocate are presently undertaken (or could be undertaken) by other
federal bodies. It seems unnecessary duplication to create a body to
perform such functions, particularly as the Employment Advocate will
require additional funding.
4.322 The Committee therefore recommends that the proposal to create
the Employment Advocate (Schedule 3 of the Bill) should not be implemented,
and that its proposed functions should be allocated between the Commission
and the Department of Industrial Relations.
4.323 The Australian Democrats member of the Committee dissents
from this recommendation. Further comment is provided in his Supplementary
Report.
4.324 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
3. THE INDUSTRIAL RELATIONS COURT
4.325 The Workplace Relations Bill provides for the transfer of the
jurisdiction currently held by the Industrial Relations Court to the
Federal Court of Australia. Additionally, disamalgamation matters shall
be dealt with by the Court.
4.326 In relation to disamalgamation of registered organisations, the
Government believes that the proper avenue for settling issues is through
court rulings.
4.327 As noted in union submissions, since its inception in 1993, the
Industrial Relations Court has achieved a high degree of specialist
knowledge, it has been accessible, prompt with assistance, speedy in
procedure and decision making and is not overly legalistic in its dealings.
These qualities may well be lost if specialist officers and support
staff are transferred to the Federal Court. [130]
4.328 The NSW Attorney-General believes that the abolition of the Industrial
Relations Court is a serious matter. It sets a precedent for the creation
and abolition of courts on an hoc basis which, he believes is undesirable.
In evidence he stated:
… it must be regarded as a serious step to abolish a court constituted
under chapter 3 of the Australian constitution. It is, of course,
fortuitous, as I understand it, that all members of that court are
also Federal Court judges, and so, arguably, there is no question
of constructive dismissal of a judicial officer, which would raise
even more profound constitutional considerations. Yet it seems to
me that the creation and abolition of courts by the Commonwealth on
a relatively ad hoc and ideological basis is and remains a matter
of constitutional concern. [131]
Conclusion
4.329 The majority of the Committee accepts that an Industrial Division
of the Federal Court could preserve, to some extent, the specialist
nature of the Industrial Relations Court. However, the majority of the
Committee believes this can only be satisfactorily done by preserving
the Court itself.
4.330 The Labor members of the Committee therefore recommend that
the existing jurisdiction of the Industrial Relations Court be retained.
4.331 The Australian Democrats Member of the Committee agrees with
this analysis but has additional comments in his Supplementary Report.
4.332 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
4. ROLE OF REGISTERED ORGANISATIONS IN THE SYSTEM
4.333 The submission from the Catholic Commission for Justice, Development
and Peace noted the important broader social role that unions have played.
The Commission took the view that the provisions of the Bill would generally
weaken union influence and activities and questioned whether, if this
happened, there were other adequate institutional mechanisms available
to protect workers.
We particularly wish to stress that unions embody some of the most
important intermediate structures in our society. They provide a wide
range of services, education and skill formation which have generally
contributed greatly to the social life of Australia for over 100 years.
They have mediated social conflict, established a culture of reasoned
debate and participation and opened up avenues to the highest political
responsibilities in our nation. This has particularly been the case
under the Labor accords of recent years. [132]
4.334 The Commission concluded: 'to weaken such structures at a time
of unprecedented social change risks undermining some of the main pillars
supporting the civil peace and consensus we have known in Australia'.
[133]
We are doubly perplexed that such radical changes in Australian unionism
should occur at this time, after a period under the Labor accords
when strikes have been at their lowest level for years, when many
unions are stimulating their members to gear up for technological
change and productivity improvements and a much more cooperative culture
of industrial relations has developed. [134]
D. UNFAIR DISMISSAL
4.335 Legislative provision for the consideration of unfair dismissal
from employment was provided for in the Industrial Relations Reform
Act 1993. However, that system has been subject to considerable comment
and criticism about the mechanism currently available being unduly legalistic
and open to frivolous or vexatious claims. It is said that the threat
of litigation has acted as an impediment to many small businesses in
taking on new employees.
4.336 The Government claims that the Bill establishes a system which:
- provides employees with access to a fair and simple process of appeal
against dismissal;
- is fair to both employee and employer;
- discourages frivolous and malicious claims; and
- is in accord with Australia's international obligations. [135]
4.337 The present unfair dismissal provisions apply to all employees
in Australia where there is no adequate alternative remedy, relying
on the Commonwealth's foreign affairs power under the Constitution.
The Bill divides its provisions into those relating to termination on
'harsh, unreasonable or unjust' grounds (section 170CE), and those relating
to termination on some other specific grounds detailed in section 170CK
(such as race, colour, sexual preference, trade union membership - section
170CK). The 'harsh, unreasonable or unjust' provisions will apply only
to employees under Federal awards or agreements, Commonwealth public
sector employees and employees in the Territories. Other employees will
be forced to rely on State law to the extent that it exists. The second
provisions will be forced to continue to apply to all employees in Australia.
4.338 The Bill provides that unfair dismissal will definitively be
dealt with by the Australian Industrial Relations Commission, rather
than the courts. The power invested in the Commission is said to be
non-judicial and it is suggested that the process will be fair and simple
without any unnecessary legalism.
4.339 It is said that the provisions are more attuned to small business
given the requirement to account for the effect of compensation orders
on the viability of small businesses. [136]
4.340 In its submission to the Committee, the Australian Chamber of
Commerce and Industry noted that while the Federal system relating to
termination of employment provisions (unfair dismissal) had encountered
a number of difficulties and consequently much criticism, the various
State systems had operated successfully for years. ACCI suggested that
the changes proposed in the Workplace Relations legislation to bring
the Federal system more into line with State systems, would be of benefit
to all employers. [137]
4.341 In particular, ACCI anticipated that the proposed changes would
allow businesses to overcome fears that have been generated by the current
legislation concerning the employment of staff. More specifically, ACCI
noted, the interests of small business are particularly provided for
in the Workplace Relations Bill through the requirement that the Commission
take account of the effects on the viability of a business of any order
it makes as a remedy for unfair dismissal. As argued by ACCI, this makes
sense when the viability of small businesses may otherwise be threatened
by the magnitude of costs and compensation orders. [138]
4.342 The South Australian Government welcomed the proposed changes
to termination of employment provisions. The submission from the Minister
for Industrial Affairs noted that the problems experienced in South
Australia related primarily to the duplication of laws, which created
uncertainty, the potential for double applications, and the unnecessarily
time consuming and legalistic processes that are a feature of the current
unfair dismissal system. [139]
Filing Fee
4.343 The Government has signalled its intention to introduce a $50
fee for applications to the Commission in relation to 'harsh, unjust
or unreasonable' termination. [140] This approach has been urged and endorsed
by some major employer organisations. The ACTU notes that the 'imposition
of a filing fee is unfair to applicants who, having lost their jobs,
are almost certain to be facing financial pressures'. [141] One witness, in describing conditions
in remote areas of Australia, raised an objection to the fee on the
basis that some employees would simply not have the money to pay the
fee, nor would they be in a location that would allow them ready access
to a method of filing their claim. [142]
State Complementarity
4.344 The ACTU submission argued that the Bill will exclude a considerable
number of workers from Commonwealth unfair dismissal jurisdiction. [143]
4.345 The NSW Attorney General submitted that although the changes
to unfair dismissal provisions were, on the whole, constructive, there
was still the potential for overlapping of jurisdictions. He advocated
that there be a unified, or a 'one-stop-shop' for claims so that if
employees covered by a State award make a claim in the Federal jurisdiction,
or vice versa, there is some capacity to send the file to the correct
jurisdiction. To achieve this the NSW Attorney General suggested that
there could be discussion at officer level. [144]
Conclusion
4.346 The majority of the Committee sees no rationale to the piecemeal
coverage of the Federal unfair dismissal jurisdiction as proposed. The
over reliance on State systems means that the legislation doesn't provide
a broad safety net of protection. It means a mismatch of varying and
often contradictory provisions and protections.
4.347 The majority of the Committee are not convinced that compensation
claims and cost orders should be adjusted to take account of the viability
of the respondent company. The Australian Chamber of Commerce and Industry's
proposition that it is better to ensure that the business remains viable
fails to recognise the point that in the market place decisions are
imposed every day that may threaten the viability of such a business.
The Chamber is not, however, saying that other penalties or common law
claims should be so discounted. No reason has been presented to justify
treating unfair dismissals any differently to those other forces.
4.348 Existing proceedings undertaken in the Court can attract costs.
However, in the less formal proceedings of the Commission (where the
vast bulk of unfair dismissal claims are ultimately dealt with) there
is no such power at present. The Bill inserts a provision whereby the
Commission, when exercising jurisdiction on 'harsh, unjust or unreasonable'
dismissal, may order costs against the employee if the employee is acting
vexatiously or without reasonable cause. [145] The majority of the Committee is concerned
this will not be an incentive to settle claims but rather become an
impost for parties that seek quick justice rather than legal wrangling.
In this regard we are particularly concerned that the imposition of
costs will simply promote the use of legal representatives. We see this
as particularly disturbing in the conciliation stages of these claims.
Such a trend can only add to the cost and the extent to which matters
go on to be contested formally.
4.349 The Labor members of the Committee recommend that the full
extent of constitutional power should be used to provide Federal coverage
to all Australians.
4.350 The Labor members of the Committee also recommend that the
proposal to permit adjustment of compensation depending on the viability
of the employer (proposed subsections 170CH(2) and (7)) should not be
implemented.
4.351 Finally, the Labor members of the Committee recommend that
the Bill should be amended so it does not provide access to costs in
the Commission's unfair dismissal jurisdiction (proposed section 1 70CJ).
4.352 The Australian Democrats Member of the Committee supports
many of these arguments but comments further about them in his Supplementary
Report.
4.353 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
E. RIGHT OF ENTRY
Registered Organisations
4.354 The Bill removes existing provisions granting unions rights of
entry to workplaces, and makes current award provisions relating to
the right of unions to enter workplaces unenforceable. The Bill replaces
these with a statutory right to enter only after a specific invitation
is made in writing by a union member who is an employee at that workplace.
The purposes of the visit may be 'to ensure compliance with an award,
order of the Commission or certified agreement,' or 'to hold discussions'
with union members. Thus Union representatives will have no right to
check compliance with the terms of an Australian Workplace Agreement.
The invitation is only valid for 28 days and, in the case of the 'to
ensure compliance' provision, the employer must be given 24 hours notice
of the union's visit to the workplace. There is no right to enter at
all if there are no union members in the workplace, even if employees
at the workplace are eligible to be members of the union. [146]
4.355 The rationale for these changes is best summarised by the Australian
Chamber of Commerce and Industry that unions are essentially service
providers '… there to provide a service to employee members on
request, rather than as institutions entitled to monopoly rights imposed
by law'. [147]
4.356 However, registered organisations argued strongly in evidence
to the Committee that the proposed restrictions to rights of entry would
considerably undermine protections that ensure that employees were receiving
appropriate entitlements. [148]
In particular, the ACTU argued that 'the requirement that the union
identify the members issuing the invitation is clearly intimidatory
and will undermine the existence of the protection'. [149]
However, to preserve the member's anonymity it is possible for a union
to apply to the Industrial Registrar for a certificate to confirm that
an employee has requested the union's visit. [150]
The usefulness of this option where the employee works in a small firm
is debatable, and it imposes many bureaucratic hurdles in the way of
ensuring compliance of awards of the Commission.
4.357 Furthermore, the ACTU contends that the requirement that entry
only be attained after an invitation is issued presupposed that employees
are sufficiently aware of their entitlements to know that there is a
compliance issue sufficient to justify issuing an invitation. Past experience
suggests that this is often not the case.
4.358 At a time when expenditure on public inspectorates is being curtailed,
the Unions believe that there can be no justification in limiting union
officials' right of entry. Many employees depend on the ability of unions
to enter the workplace to check working conditions and, in particular,
occupational health and safety matters. The simple fact that union officials
can enter the workplace without invitation or notice assists greatly
to reduce hazardous working conditions, such as those experienced in
the mining, construction, and forestry sectors, and acts as a deterrent
to unscrupulous employer practices. [151] If there was a requirement of giving
24 hour notice of inspection, such notice would allow an unscrupulous
employer time and opportunity to hamper such investigations.
4.359 The Textile, Clothing and Footwear Union of Australia argued
that, because policing award compliance has been neglected by Department
of Industrial Relations, the retention of existing provisions for right
of entry by union officials was essential. The TCFUA can only perform
this function if it has unhindered access to employer premises and records.
The Union emphasised that unhindered right of access should not be a
threat to rightful employers but that it was essential in relation to
rogue employers. [152]
4.360 The Health Services Union noted that the requirement for a request
for union entry into a workplace be put in writing discriminates against
employees who do not have adequate literacy skills or who have learning
disorders. [153]
4.361 Finally, the provision that union must be invited by an employee
before visiting a workplace prevents union from recruiting, especially
in businesses where there may not yet be any members, places undue pressure
on any employee who wants to have union visit, and places pressure on
the union officer to not reveal the name of the person who has issued
the invitation.
4.362 The Honourable J M Riordan AO makes the point that broad union
rights of entry to ensure compliance with award terms and conditions
protect the union's members directly by ensuring that they are paid
their entitlements, but also indirectly by ensuring that those employers
who observe the awards are not unfairly undercut by employers who seek
to gain a competitive advantage by avoiding their lawful obligations.
[154]
4.363 Mr Carter of the Australian Road Transport Industrial Organization
commented:
In terms of the government's intention to alter the provisions to
say that a union official must be invited onto the premises by members,
we generally believe that that really is not beneficial. In actual
fact, under the award, there are provisions covering the number of
union officials who can be on your premises for a certain amount of
time and how often they can visit, and these work reasonable well.
We see no reason to make that change. [155]
4.364 In submissions, the point was further made that the existing
arrangements were sufficiently flexible to ensure that rights of entry
were not abused or used for purposes other than that for which they
were intended. This issue was addressed in the exchange between Senator
Sherry and Mr Steel of the South Australian Chamber of Commerce and
Industry:
Senator Sherry: Do you believe that is the appropriate mechanism
if there is a problem in a particular industry, to have the Commission
vary the right of entry provision?
Mr Steel: That is the appropriate, ideal approach, yes, but
the trouble would be making a successful application.
Senator Sherry: But you have the opportunity to argue your
case before an independent umpire in the form of a Commission, State
or Federal. Is that correct?
Conclusions
4.365 The majority of the Committee is of the view that the limits
that the Bill places on existing rights of entry should be rejected.
4.366 The right of entry has been an important component of the compliance
function. Rather than being a privilege, it is part of the effective
armory to undertake compliance. In light of this, there seems little
rationale to limiting this to invitation only. Individual employees
have an interest in ensuring that their standards are maintained without
having their concerns subject to scrutiny by the employer. Small business,
in particular, has expressed an interest in ensuring that their competitors
are not using illegal means as a basis of competition with them. Unions
have an interest in ensuring that sharp practices are not putting undue
pressure on their members' wages and conditions. There is no rationale
for making the nomination of an employee a precondition of the function.
4.367 Not to recognise this and to assist the union discharge this
function has no basis in logic or good public policy. This is particularly
so in these times of budgetary austerity. What is the point of restricting
unions from discharging a public function which is at no cost to the
Government?
4.368 The removal of award entry rights also proves difficult. The
ability of the Commission to provide and vary entry rights ensures that
the entry requirements are as attuned to the needs of the businesses
in an industry as is possible. It also gives employers the opportunity
of redress if those rights are being used in a way inconsistent with
their purpose. This, for the majority of the Committee, represents one
of the positive aspects of the existing system.
4.369 Finally, the limits of right of entry seem burdensome and bureaucratic.
The Committee heard evidence of these being effective barriers to the
discharge of the compliance function. Limits going to the time that
entry is to be made and the preconditions that need to be established
to effect the right don't have any significant rationale. In this regard,
the Committee heard very little evidence to suggest that the existing
protections against the abuse of the right have not been successful.
4.370 The majority of the Committee therefore recommends that the
Bill's proposals (sections 286 and 286A) should not be implemented,
and that the existing right of entry arrangements, including the ability
of the Commission to award the right, should be maintained.
4.371 The Australian Democrats Member of the Committee supports
these conclusions and recommendations but has made additional comments
in his Supplementary Report.
4.372 The Government members of the Committee disagree with the
conclusion and oppose the recommendation.
Department of Industrial Relations - Arbitration Inspectorate
4.373 Authorised arbitration inspectors have the power to enter premises
to ascertain whether awards and the requirements of the Industrial Relations
Act are being observed (section 86). This function is performed by the
Awards Management Branch of the Department of Industrial Relations.
4.374 As noted above, the performance of the Awards Management Branch
in ensuring compliance with Federal awards is not highly regarded (principally
it should be said because of insufficient funding). In financial year
1994-1995, over 300 000 enquires were received about awards, agreements
and employment related issues by the Awards Management Branch and just
over 4000 complaints about alleged breaches of awards or the Industrial
Relations Act. [157]
4.375 Arguably, given the difficulties of the Department of Industrial
Relations in checking compliance with the Act, the de facto role of
unions in this regard is an important one.
4.376 It is not the first time this Committee's attention has been
drawn to the inadequate funding of awards inspectorates at both a State
and Federal level. In the recent inquiry into outworking in the garment
industry, witnesses stated that there was 'a dramatic under-resourcing
of both awards information lines and inspectorates'.
Conclusions
4.377 If the Federal Government is not willing to adequately resource
the Awards Management Branch to ensure compliance with awards, the majority
of the Committee concludes that the proposal to remove unions' rights
of entry will only increase the level of award non-compliance and leave
employees' little or no redress. The majority of the Committee therefore
recommends that the existing section 286 of the Industrial Relations
Act be retained and the award clauses allowing for entry be allowed
to remain.
4.378 Government members of the Committee disagree with the above
conclusions and oppose the recommendation.
[Return to Table of Contents]
Footnotes
[116] Reith, the Hon. P, Minister for Industrial
Relations, second reading speech on the Bill, House of Representatives
Hansard, 23 May 1996, p1295.
[117] Submission No. 1017, pp. 111-120,
Australian Council of Trade Unions.
[118] Submission No.1016, p. 152, Department
of Industrial Relations.
[119] Submission No. 905, p. 24, Australian
Chamber of Commerce and Industry.
[120] Submission No. 506, p. 24, Tasmanian
Chamber of Commerce and Industry.
[121] Submission No. 905, p. 29-30, Australian
Chamber of Commerce and Industry.
[122] Submission No. 1018, p.41, Victorian
Trades Hall Council.
[123] Submission No. 1017, p. 115, Australian
Council of Trade Unions.
[124] Submission No. 1391, p. 7, Professor
J E Isaacs, Department of Management & Industrial Relations, University
of Melbourne.
[125] Submission No. 1024, p. 3, B. Pocock.
[126] Submission No. 1292, p. 3, ARTIO.
[127] Evidence, p. E 772, M. Carter (Australian
Road Transport Industrial Organization).
[128] Submission No. 511, p. 2, Mr Gary
Collis, Office of the Employee Ombudsman.
[129] Submission No. 341, p.11, Professor
R.C. McCallum, Blake Dawson Waldron Professor in Industrial Law, University
of Sydney.
[130] Submission No. 570, p.18, Australian
Liquor, Hospitality and Miscellaneous Workers Union, National Office.
[131] Evidence, p. E 706, the Hon. J. Shaw,
Attorney General of NSW.
[132] Evidence, p. E 527-8, Fr B. Duncan
(Catholic Commission for Justice, Development and Peace).
[133] Submission No. 1141, p. 6, Catholic
Commission for Justice, Development and Peace.
[134] Evidence, p. E 527-8, Fr B. Duncan
(Catholic Commission for Justice, Development and Peace).
[135] 'The Reform of Workplace Relations'
Legislation Guide May 1996, paragraph 6.1. Appended to Submission No.
1016, Department of Industrial Relations.
[136] Submission No. 905, p. 2, Australian
Chamber of Commerce and Industry.
[137] Submission No. 905, p. 23, Australian
Chamber of Commerce and Industry.
[138] Submission No. 905, p. 23, ACCI.
[139] Submission No. 413, p. 8, Minister
for Industrial Affairs, South Australia.
[140] Reith, the Hon. P. Workplace Relations
and Other Legislation Amendment Bill 1996 - Explanatory Memorandum,
p43. This would be done by regulation pursuant to section 359(2)(c)
of the Act.
[141] Submission No. No. 1017, p. 27, ACTU.
[142] Evidence, p. E 1271, R. Hitchcock
(ALHMWU, Northern Australian Workers Union Branch).
[143] Submission No. 1017, overview p. 5,
Australian Council of Trade Unions.
[144] Evidence, p. E 707, the Hon. J. Shaw;
Submission No. 1179, pp. 11-12 (NSW Government).
[145] Bill, Schedule 7, section 170CJ.
[146] Bill, Schedule 15, section 286.
[147] Submission No. 905, pp. 49-50, Australian
Chamber of Commerce and Industry.
[148] Submission No. 1017, Overview p. 3,
Australian Council of Trade Unions.
[149] Submission No. 1017, p. 42, Australian
Council of Trade Unions.
[150] See proposed section 291A, Schedule
12.
[151] Submission No. 1018, p.46, Victorian
Trades Hall Council.
[152] Evidence, p. E 868, I. Nossar (TCFUA).
[153] Submission No. 866, p. 13, Health
Services Union of Australia.
[154] Submission No. 1341, p. 21, The Honourable
J.M. Riordan AO
[155] Evidence, p. E 774, M. Carter (Australian
Road Transport Industrial Organization).
[156] Evidence, p. E 1734, D. Steel (SA
Employers Chamber of Commerce and Industry).
[157] Department of Industrial Relations
Annual Report 1995-95, p. 48.