2.0 OVERVIEW OF MAJOR ISSUES
During the hundreds of hours of evidence given to the committee, it was
evident that some of those giving evidence had spent considerable time
considering a very wide range of issues of primary importance. Rather
than attempt to paraphrase or redefine these issues, it was decided to
use direct quotes to highlight various issues in people's own words.
2.1 Economic Importance
*Mr Bowman - ...The NFF has been consistent over many years
in its call for labour market reform. It has recognised the opportunities
we are losing as a trading nation in the global environment by having
a rigid and inflexible labour market philosophy. These calls for market
reform are not driven by philosophy in itself; they are driven by hard
economic analysis. We recognise the need to improve productivity substantially.
We need to have greater workplace flexibility in order to trade successfully
in the international scene, bearing in mind that the products that most
of our members produce are exported and therefore subject to international
price vagaries.
The government has enhanced the Hilmer principles, which allow for
competition, in recent times and they have also substantiated the need
for the ACCC, the Consumer and Competition Commission. This in essence
calls for, and in fact demands, greater flexibility in all areas of
the economy and nowhere is more essential than in the labour market.
We are a trading nation of some substance, although very small numerically.
We are a small bit player. It has often been said that, when America
or Europe gets a sneeze, we catch a very severe cold in trade terms.
I think that can be demonstrated. We cannot and should not isolate ourselves
from the global community by using artificial barriers to protect or
limit workplace flexibility. Such a move is clearly against the principles
of the General Agreement on Tariff and Trade and, indeed, is definitely
and clearly against the long-term interests of the Australian economy.
Artificial, short-term barriers are just essentially that. They may
possibly have some short-term benefit, but market forces ultimately
would prevail.
We believe that this bill provides a modest step in the right direction
in affording flexibility in the Australian workplace. It is also quite
clear that, in a global environment, there is a need to compete, and
competition and improvement always require change. Therefore, the status
quo is not acceptable and the status quo in industrial relations in
Australia is clearly not acceptable.
We believe that the bill brings about substantive change in the least
divisive manner. However, it falls well short of the broad flexibility
that is available to many of our international competitors. We feel
the bill provides substantial benefits in seven major areas. Firstly,
it allows state agreements to override federal awards. Secondly, it
improves the unfair dismissal procedures, although they are still fairly
restrictive in our view. Thirdly, it limits the jurisdiction of the
IRC to 20 specific areas.
Fourthly, it introduces Australian workplace agreements which do not
require IRC approval. You will notice in our submission that we dwell
for some time on the application of Australian workplace agreements
because we feel very strongly that the means need to be found to apply
them to unincorporated bodies, sole traders and partnerships. In our
formal submission, we suggest a couple of ways in which that can be
done. Although there has been substantive legal argument across the
board, we feel the solution is quite simple and is incorporated in our
formal submission.
Fifthly, it reintroduces sections 45D and 45E of the trade practices
legislation - the so-called secondary boycott provisions. It is our
view that these have been instrumental in limiting the amount of industrial
disputation in the Australian work force while they are in place. It
has been suggested that because they have not been used extensively
in their former position they are, therefore, not required. It would
seem to us that that is indicative of their success and, therefore,
we strongly support the reintroduction of those provisions to minimise
workplace disruption.
Sixthly, we believe the bill replaces regulation on independent contractors.
In an environment and society such as ours, contractors need to be able
to work independently of very rigid laws that are contained in industrial
legislation. Seventhly, and most importantly, it repeals the `convenience
to belong' rule. It has no place in our society, in our view. It puts
a statutory framework over which any group of individuals can operate.
People need to compete freely within society, and `convenience to belong'
reinforces, in a very statutory way, the influence of some members and
groups of members in our society and in the debate related to industrial
legislation. We do not oppose groups of this nature. Quite clearly,
we have freedom of association and that should be preserved within Australia;
however, we believe that that should not be backed by statutory support.
The NFF believes that if any of these seven fundamental reforms is
compromised in any way, then the benefits to the small business sector
will be, largely, lost. That, of course, includes agricultural enterprises.
I need to point out to the Senators that lower wages are not the result,
necessarily, of the changes that are proposed. In two areas which are
vital to agriculture - the waterfront and, particularly, meat processing
- the resolution to the industrial problems in these two industries,
in fact, is related to structure and has nothing to do with rates whatsoever.
I would like to mention the role of the Australian Industrial Relations
Commission. There needs to be support for an independent umpire; however,
the current bill does limit the powers of the AIRC commensurate with
devolution of industrial powers back to the enterprises, which is a
clear direction of the bill. So, therefore, we believe that the current
proposal is entirely adequate and strictly in keeping with the objectives
of the legislation. The AIRC must be accountable for its actions and
the question must be asked: has the AIRC used its current powers constructively?
They are extensive powers. Has the exercise of those powers over a period
of years led to any successful outcome?.
The NFF believes that the bill is a modest step in the right direction.
It should be accorded rapid and speedy passage through the parliament
so that the benefits that I have alluded to are readily available to the
Australian work force and the economy. However, if that process is not
available and the bill is compromised in any way, we think any such amendments
should be restricted to the election comments made by the now Prime Minister
during the election campaign, and any amendments should be restricted
to the mandate that we believe the government has to implement its industrial
relations reform. If the amendments go beyond that, in other words, if
the amendments get to the stage where the document could be considered
a status quo document, then because we believe that that is totally unacceptable
we would be recommending that the bill be withdrawn from parliament and
be reintroduced in another form." [14]
*Mr Alan Bowman, Industrial Committee Chairman, National Farmers' Federation
2.2 Health and Safety
Senator Childs - First of all, how do you see the issue of health
and safety - which is a very important issue in the building industry
- under the legislation?
*Mr T. Chamberlain - Health and safety is a state act responsibility;
it is a state responsibility and it is recognised as such in this legislation.
It is a matter which is the subject of inspectoral surveillance in any
event. It is a matter that can be quite properly and adequately taken
on in its own right. It does not have to be built into this legislation.
[15]
*Mr Terence Chamberlain, National Industrial Relations Director, Housing
Industry Association Ltd.
And,
*Mr Finucane - ...You can see a steady improvement from the introduction
of the HISAFE program in 1992-93 to a lost time injury frequency rate
of about 10.5. I will just make a comparison so that you can get that
into focus. A lost time injury rate of about 10.5 is equivalent to and
slightly better than working in the finance and commerce industry in Western
Australia. So it is safer to work in a mining operation in the north-west
of Western Australia than it is in a bank. Those statistics, by the way,
are freely available from the Department of Occupational Health, Safety
and Welfare and also from the Department of Minerals and Energy. Absenteeism,
after the introduction of the single status work force in the all staff
program, halved and continues to be that way. By that I mean casual absenteeism,
not absenteeism due to leave entitlements or whatever. [16]
*Mr Anthony Finucane, General Manager, External Affairs, Hamersley
Iron P/L
2.3 Why the Award System Needs Simplifying
Senator Ferguson - I am wondering if you could expand on another
one of your written comments. In response to term of reference (a) you
say:
HIA believes the award system to have fallen into abuse, and to
be inappropriate to the shifting demands and needs of the modern workplace.
Would you like to expand on that comment on that term of reference,
particularly 'the award system to have fallen into abuse'?
*Mr T. Chamberlain - I think the award system has become a catch
bag of demands rather than a negotiated outcome over time. The award
system has become remote to the average worker and to the average employer
to the extent that the whole of the industrial relations regime is really
an art form - something people know is there but do not understand and
really do not have any ownership of, nor feel they belong or have any
attachment to it.
We have a situation where people are really running their major resource,
which is their labour, on a remote control basis rather than having direct
input. The workplace agreements and the use of an agreement based regime
certainly brings management back to having to focus on what they are about
and taking a more active management role. [17]
*Mr Terence Chamberlain, National Industrial Relations Director, Housing
Industry Association Ltd.
2.4 The Employment Advocate
Chair - Whilst we are on the terms of reference, I am interested
in your comments on page 12 under terms of reference (l) about the balance
between the rights of employers and employees. You make a comment about
the Employment Advocate. I am particularly interested in your views
because this committee has heard submissions that the role of the Employment
Advocate as proposed under this bill is limited in how it could act
and in its lack of independence. All you really say is that you think
it is interesting and worth monitoring. Does the HIA actually have a
view about the role of the Employment Advocate?
*Mr T. Chamberlain - Yes. We believe it is interesting and should
be monitored. The creation of the Employment Advocate is core to how
this act is going to be policed in some respects because it will be
a source of information and control, if you like, as to how things are
going. It is interesting because it is an office that may become very
busy. The extent to which it will require resourcing and outsourcing
is going to be the interesting part of it. I think it may be a role
that gains more work than some think it is going to. It may be that
it becomes a defacto legal and commercial advisory centre in some respects.
It must, but just where you put the definitive limits to the role, how
well you put skills and trained resources into the field to the extent
that you have to outsource them, where you get those from and how you
qualify them are a whole range of issues that are clearly yet to be
met.
Chair - So we should look carefully into how its role is defined
at this stage?
Mr T. Chamberlain - I think the role is quite proper. What it
is seeking to do is to allow a point of contact where people can go
for advice and assistance in relation to the system so that they are
not excluded from it but are given access to it. I think that is an
important improvement.
Chair - Do you think it should have a role of scrutiny?
Mr T. Chamberlain- I think there should be a reporting and an
accountability duty that goes with it, yes.
Chair - But should it actually scrutinise individual Australian
workplace agreements?
Mr T. Chamberlain - In terms of the workplace agreements? No,
I have no difficulty with the way that it runs at the moment.
Chair - It does not run at the moment." [18]
*Mr Terence Chamberlain, National Industrial Relations Director, Housing
Industry Association Ltd.
And,
Senator Crane - ...Could I now go to page 19 where you say:
. . . there should be a positive obligation on employers to provide
employees whose first language is not English. . . We do not want
to load up employers with another cost. We know that a lot of employers
in many parts-particularly in regional parts - are under enormous pressure.
Why should that not be a function carried out by the employment advocate?
*Ms Walpole - That would provide the solution that we are looking
for.
Senator Crane - Because it is the intent to have interpreters.
Ms Walpole - Yes. You will notice that we have actually set
it out. We do not have any argument with the idea of an employment advocate.
It just seems to us that perhaps the advocate needs to be given a much
better defined role in terms of vetting and making sure that issues
such as discrimination do not occur.
Senator Crane - Yes, I noted that. [19]
*Ms Sue Walpole, Commissioner, Human Rights & Equal Opportunity
Commission
2.5 Role of the Australian Industrial Relations Commission
*Mr Winley - There has been some criticism from a number of
quarters that the reform proposals will reduce the role of the Australian
Industrial Relations Commission under the act as the independent umpire.
It seems to us that the concept of independent umpire implies that the
umpire has equal control over the action of both teams in the game,
but we would have to say that this is a role the commission really has
not had for some decades given that the ACTU has reserved to the union
movement the right - they certainly would have called it that - to reject
tribunal decisions they do not like and pursue its goals by force. If
you are going to talk about an independent umpire, then it has to be
one that has equal control over both teams in the game. That is not
something that seems to be very productive.
We think the commission's role, by this bill, will be clarified. It will
have a significantly greater role in things like directions and suggestions
for dealing with compliance issues, which were proposed as amendments
to the bill as long ago, I think, as 1987 but fell by the wayside then.
That sort of change to the act seems to us to give the commission a much
more clearly defined and important role. Of course, its role in conciliation
is unchanged." [20]
*Mr Vernon Winley, Assistant Director, Business Council of Australia
2.6 Power of the Australian Industrial Relations Commission
*Mr Winley - ...Much, too, has been made in comments and media
reports of the bill's proposal to remove the power of the Australian
Industrial Relations Commission to set maximum or minimum hours of work
for regular part-time employees. It has been said that this amendment
will act particularly to the disadvantage of women by allowing employers
to alter their hours and patterns of work at will.
Of course, close reading of the actual amendment indicates that it
will do nothing of the kind. The amendment says only that the commission
will not be able to make awards that set maximum and minimum hours for
regular part-time employees. It does not say anything about the processes
for changing people's hours of work. That is something that, presumably,
awards will still be able to cover if that is appropriate in a particular
industry.
More importantly, it is something that agreements can deal with. It
is certainly something that individual contracts of employment deal
with now. If someone works on a regular part-time basis and there is
a process involved for changing the part-time hours or else there is
a prohibition in changing part-time hours, that will remain regardless
of this amendment to the act, because all this amendment does is talk
about maximum and minimum hours.
So suggestions that that amendment proposed in the bill will suddenly
lead to mayhem in changes of the individual hours of regular part-time
employees seems to me to be based on a misreading of what the amendment
says and a failure to understand that the question of changing hours and
the processes for changing hours are, in fact, not affected by that amendment."
[21]
*Mr Vernon Winley, Assistant Director, Business Council of Australia
2.7 Discrimination
*Mr Winley - ...However, our view is that the area of over award
payments is not regulated now. The area of over award payments is not
proposed to be regulated by this bill. As a matter of principle, the
area of over-award payments should stay in that unregulated way but
the principle of equal remuneration should be addressed by other mechanisms
and other acts of the parliament in particular, the Sex Discrimination
Act and the other arrangements associated with the Human Rights and
Equal Opportunity Commission.
If those directly concerned in administering those acts say that the
Sex Discrimination Act is not strong enough to achieve that, then, in
our view, it would be better to amend the Sex Discrimination Act to make
it more effective rather than try to use the industrial relations framework
to deal with something which is much wider than an industrial issue; that
is, of equal remuneration and equal opportunity and elimination of all
forms of discrimination. Let me emphasise that that is not in any way
to suggest that we condone or support discrimination. In fact, we have
gone to some lengths to try to make sure that that is countered in any
area where we have any influence. [22]
*Mr Vernon Winley, Assistant Director, Business Council of Australia
2.8 Awards
*Mr Watchorn - ...But part and parcel of that process was the
proposition that awards were far too prescriptive, that they were predicated
essentially on a one-size-fits-all basis, that awards dealt with matters
in far too much detail and that it was appropriate that that detail be
stripped from awards - and I use `that that' term not in a pejorative
sense, not in the sense that it has acquired some pejorative connotations
- and for there to be greater scope for the enterprise to reach arrangements
suitable to its own working pattern and needs. That proposition, I think,
has gained strength over the years since 1988 and, indeed, was echoed
by some of the parties in fairly recent proceedings in the Australian
Industrial Commission in the last two or three years. [23]
*Mr Barry Watchorn, Director, Australian Chamber of Manufactures
And,
Senator Chapman--I wish to follow up what Senator Crane raised
with you. It seems to me that one of the arguments that has been raised
against the legislation--it has partly been dealt with in questions--is
the issue of unequal bargaining power and the fact that with awards
being stripped back to those minimum matters, even those AWAs may not,
in effect, fall below the provisions of the awards and it will leave
workers vulnerable to reduced pay and conditions. Could you comment
on that.
*Prof. Sloan--I do not like the term `stripped back' because they
are actually not being stripped back. How this worked out, given John
Howard's commitment, was that basically everything that had a dollar attached
to it in an award went over into an allowable matter. One can tell to
a degree what is excluded as being rather trivial, like the union picnic
day. [24]
*Professor Judith Sloan, Director National Institute of Labour Studies,
Flinders University
2.9 Carers' Leave
*Mr Watchorn - ...It could also be said that we took the view
that award provisions regarding leave are those that ought to have been
protected and, accordingly, we note that the government's proposals in
relation to carers leave in effect involve a slight increase in the quantum
of the sick leave component of that for a number of awards - in fact,
in most awards in relation to the first year's employment. So, against
that background, we see the philosophical approach which the government
has taken as: being on the right track; providing a set of choices which
are available for employers and employees at their own enterprise to reach
arrangements suitable to their own needs; focusing more on agreement than
dispute settling; and providing a set of protections, against the background
of which the legislation relating to agreements must be considered."
[25]
*Mr Barry Watchorn, Director, Australian Chamber of Manufactures
2.10 Objects of the Act
Senator Crane--I will just follow on with a question regarding
the objects. Senator Collins is quite right that the issue of the objects
has come up a number of times during the inquiry and a different emphasis
has been placed on them depending on where you are coming from, and
certainly they do cover a very wide range of issues and matters.
The question that I want to particularly deal with comes from a technical
paper that was put down by the ACTU this morning with some interpretations
of suggestions I made with regard to certain things. I do not want to
go to the detail of what I said until I get the Hansard and see precisely
what I said over that period. I put a lot of emphasis, to a number of
witnesses, on the role of the objects of the act, which are very significant
in dealing with the clauses in the various provisions of the act, and
I said that they had to be taken into consideration by the commission
and others when decisions were being made.
In addition - I did not mention this, I believe, during the hearings
- there are also some provisions in the principal 1988 act which have
not been changed with regard to the objects. I sent you a copy of this
paper and let you know that I was going to ask you questions - not this
particular question - with regard to the objects. Could you give the
committee an overview of the importance of the objects and what weight
they carry? In particular, what are the requirements under those clauses
in the principal 1988 act which we have not had before this committee
in discussion?
*Mr Stewart-Crompton - The objects of any piece of federal legislation
are very important for those people who have to exercise powers and
functions under the legislation because they give guidance to the nature,
purpose and scope of the legislation. This is very important, particularly
where there are tribunals or decision makers who have wide discretions.
The objects of the Industrial Relations Act, like the objects of the
proposed workplace relations act, will continue to be very important
for all decision makers under the legislation. For the commission, in
particular, there is an express requirement under section 90 of the
Industrial Relations Act - the 1988 act, as you describe it - which
requires the commission to take into account the public interest and,
for that purpose, to have regard to the objects of the act. So it is
an express statutory requirement that the commission, whenever it is
exercising a power or performing a function, must take into account
the objects. Of course, the commission does consistently do that.
When considering the objects, the commission is not limited to just
looking at the express objects of the act. It also has to take into
account what the courts have described as the implied objects of the
act. In other words, there are certain purposes which are to be drawn
from the overall direction of the legislation. It is not just the commission
that will have regard to the objects. For example, when registrars are
exercising powers or performing functions, or when, now, the Industrial
Relations Court or, in future, the Federal Court, is dealing with matters
under the act, it will, where it has to exercise a discretion, take
into account the objects of the act. The objects are also useful where
there is some question of ambiguity or lack of clarity in a provision.
For the commission itself, the very significant aspect of the Industrial
Relations Act which will be retained in the workplace relations act is
the injunction which the parliament has included in the legislation that
the commission take into account the objects when it is performing its
functions. [26]
*Mr Robin Stewart-Crompton, Deputy Secretary, Department of Industrial
Relations
2.11 Powers of the Commission to Arbitrate
Senator Crane - The next point I wish to go to for clarification
relates to 170MX. This paper said, `It is not correct, as was suggested
by Senator Crane, that the effect of 170MX(3) and (5) is to allow for
a general arbitration power beyond the matters outlined in section 89A.
Once again I have not got the Hansard to see precisely what I said
- and I do not want to raise it at this time because I will deal with
it once I get the Hansard - but the point that I was trying to get over
at that time I believe is that there were circumstances whereby the
commission did have arbitration powers which went beyond the 18 allowable
matters in certain instances. I just want to get confirmation of what
my belief was in terms of 170MX, particularly as it applies to 170MY.
That comes into play in 170MX(2). Section 170MX(3)(b) makes reference
to it, and 170MY(2) says:
To avoid doubt, the Commission's powers under subsection (1) are
not limited by section 89A.
I just wanted to get clarification from you because there seems to
be some disagreement, if you like, between the ACTU and what I said.
Could you explain to the committee what the extension of those powers
are beyond those 18 allowable matters.
*Mr Stewart-Crompton - You have referred to sections 170MX and
MY. They, together with section 170MZ, provide for the powers of the
commission when it has suspended or terminated a bargaining period on
certain limited grounds. Those limited grounds deal with what could
be broadly described as essential services disputes during a bargaining
period. Section 170MW says that the commission may terminate a bargaining
period if it forms the view that:
...industrial action . . . is threatening:
(a) to endanger the life, the personal safety or health, or the
welfare, of the population or of part of it; or
(b) to cause significant damage to the Australian economy . . .
When it does so, under section 170MX it is required to begin to conciliate
to try to resolve the differences between the parties. If conciliation
fails, then the commission can proceed to arbitrate - and this is, I
think, the nub of the point that you have raised, Senator.
The powers that the commission has in relation to arbitration are not
intended to be limited by section 89A, because this is seen as a special
case. It is seen as a situation where, if the parties had been able
to bargain successfully without causing the disruption that led to the
termination of the bargaining period, they would have been able to reach
an agreement which would not have been limited to the allowable award
matters specified in 89A.
So the government's view was that, if the commission is going to substitute
its arbitrated award for an agreement which might have been reached
between the parties, it should not be limited to the allowable award
matters. There are certain limitations on the award which make it clear
that it is more in the nature of a closed agreement than the usual minimum
rates award. Those limitations are clear in section 170MZ.
Senator, you are correct when you referred to section 170MY(2) which,
as you have pointed out, expressly says that to avoid doubt the commission's
powers under subsection (1) of section 170MY are not limited by section
89A. Subsection (1) says that the commission has conciliation and arbitration
powers under part VI but without the limitations on its arbitral powers
that are inherent in section 89A.
The one other matter for completeness that I should refer to is that,
when the commission is arbitrating in this special case, it is required
to have regard to a number of matters. One of those is the subject matter
that was at issue during the bargaining period. But when it makes an
award it is not confined to making an award that deals with those matters.
This is made clear in section 170MX(6), which states:
Subsection (5)
the one I have just referred to
does not, by implication, limit the matters to which the Full Bench
may have regard.
So, in essence, the commission is being asked in this procedure where
it is making an essential services closed award, if I may so describe
it, to decide what will resolve the dispute between the parties in a way
that takes account of the matters specified in subsection 170MX(5). But
it is certainly a much wider arbitral power than is available normally
for dealing with industrial disputes and award making. [27]
*Mr Robin Stewart-Crompton, Deputy Secretary, Department of Industrial
Relations
2.12 Awards Set Pay For Work Arrangements
Senator Crane - Thank you for clearing up that point. There
is one last point that I want to raise on this, one that I have raised
a number of times during the hearing. I would like to hear the department's
view on this. It relates to - within the allowable matters - the responsibility
of the commission and section 89A(2)(b) and onwards, which refers to
ordinary time hours of work. Subsection 2(c) refers to rates of pay
generally while subsection 2(d) refers to piece rates, tallies, et cetera.
I will not read it all out because I am sure you are more familiar with
it than I am, and everybody at this table has heard it a few times.
The point I am coming to relates to the underpinning of the various
methods of employment provided in this bill by those particular clauses
from the point of view of wages or payment. We then go to 170LG, minimum
conditions, which states:
For the purpose of this Part, the minimum conditions are those set
out in Part VIE.
Part VI is contained on pages 152-153 of the bill. It says:
Employees under an agreement are entitled to:
. wages over a period no less than the wages that would have been
earned over the period under the award.
Then it goes on and deals with a number of sections - 170XF, 170XG,
et cetera, which I will not go through. But it refers to pieceworkers,
casual employers, casual pieceworkers, et cetera. As far as I am aware,
looking at this particular bill and each component of employment, you
go back to the underpinning of what they will be paid and back to those
clauses there, which are set by the commission in terms of negotiating
or coming to that particular position.
I just wanted to get confirmation from you regarding my understanding
of the provisions as to setting of pay. Whether it be a casual worker,
a piece worker, somebody employed under an agreement, a certified agreement,
et cetera, it has to come back to those standards that are set to the
relevant award.
*Mr Stewart-Crompton - That is correct, Senator." [28]
*Mr Robin Stewart-Crompton, Deputy Secretary, Department of Industrial
Relations
2.13 Agreements
Acting Chair - Could you give us some indication of the workplace
arrangements that currently exist in Western Australia throughout the
farming community? We did hear that something like only three per cent
of the rural work force works under an award. Could you give us some
indication of the current arrangements in rural Western Australia?
*Mr Norton - In Western Australia I believe it would be lower
than that. I believe the workplace agreements and management practices
of the WA farming industry are that the bulk of the employees are paid
well above the award rate. In the majority of cases it is a gentlemen's
agreement between the employers and the employees. It has worked very
successfully. In our submission we state that we are world leaders when
it comes to productivity. Quite obviously, the systems in place on farms
are working extremely well. The problem we have in this country is when
the commodity leaves farms and enters into the meat processing sector
or goes to the wharf. Then the wheels really fall off the car. This is
the area that we really have to focus on and this is the area that the
amendments to the current act have to focus on. Otherwise this country
is doomed. [29]
*Mr Michael Norton, President, Meat Section, Western Australian Farmers'
Federation
And,
Acting Chair (Senator Chapman)--Thank you, Mr Rice. Can
I just ask a quick question to open the batting? The picture you have
presented is certainly contrary to everything we have heard from trade
unions over the last couple of days about the operation of the Tasmanian
enterprise system, which has been painted as one that is very draconian
and almost a situation where employees or potential employees, particularly
if they are looking for a new job, walk in and it is a case of sign
here or you do not get the job. In your experience, is that the way
it actually operates or is it as you have described it, where it seems
to operate fairly and without discrimination?
*Mr Rice - It has been my experience that it has operated fairly
and without discrimination--purely on the basis of the experience that
I have had, both in the retail sector and in the rural sector. The agreement
that we did at the large farmer packing process was to send small beans
to Japan that had to be individually picked and individually packed
and there were 60 people involved in that particular agreement. Because
of economic circumstances, the agreement was not renewed the following
year; the enterprise did not continue, unfortunately. It was at that
time that we had a large percentage of those involved in the enterprise
agreement process contact our office to see if it was going to be taken
up by any other enterprise as they would be very interested under the
same terms and conditions.
Our view of that agreement was, before the committee here, that it
virtually did away with overtime. It worked into the evening, it worked
on Saturdays and Sundays and there were no penalty rates paid. There
were some premiums, perhaps 50c in one instance and $1 in another instance,
on top of the normal casual hourly rate, but it did not pay overtime.
We did not have any repercussions or any problems associated with that
agreement after the event, as you would expect if people were dissatisfied
with that agreement.
In the agreements that we have looked at in the retail area, one comes
to mind where there were five casuals; they were schoolchildren after
work, and they ranged from 15 to 17 years of age. When their parents
came to the meetings it was explained that they could have the union
involved if they chose to have the union involved. There was some suggestion
at that particular time that there were two agreements: one for two
full-time staff and one for the four casuals. The two full-time staff
voted on who the returning officer ought to be. At the hearing there
was a suggestion that the casuals did not have any say in who the returning
officer was going to be. That agreement fell over until we went right
through and had the ballot again for the casuals.
But, interestingly enough, it was the casuals, the young people themselves,
not their parents, who negotiated with the employer and negotiated themselves
a better rate. It was young ladies. It was very pleasing to see the
way that they conducted themselves in their negotiations, so much so
that the agreement has now been renewed for five years and the employment
factor for casuals has gone to six. But with the previous casuals now,
those who did not continue with their education, the full-time arrangements
have gone to some in year 12 in that particular enterprise.
I can only speak from my own experience of the way that it has gone.
The checks and balances are in the system, and it receives integrity from
the Enterprise Commissioner and the scrutiny he places on each agreement.
They have a 1800 number when people are advised that the hearing date
is going to be on such and such a date. So any queries or concerns they
have, they can ring the commissioner even before we get to a hearing.
Then there are individual interviews at the hearing when they can raise
any comments. In the agreements I have been associated with, that has
not happened. There has been extensive consultation and negotiation prior
to the agreement going before the commission. [30]
*Mr Keith Rice, Director, Industrial Relations, Tasmanian Farmers'
& Graziers Association
2.14 Need for Flexibility Between State & Federal Agreements
Senator Crane - In terms of the situation that exists, specifically
regarding the rural area of Tasmania, how do you operate your enterprise
agreement arrangements under the Tasmanian act in conjunction with the
coverage of the federal pastoral award in Tasmania?
*Mr Rice - As you probably see in our introduction, the terms
of the Tasmanian act require us to have two industrial associations,
one that is registered in the federal arena and one that is registered
in the state Industrial Commission. So for those people currently covered
by the federal pastoral industry award--members of what is known as
the TFGA Industrial Association--access to the Tasmanian legislation
is not available to them at the present time. It is only those covered
by the state system, under what is known as the Tasmanian Farmers and
Graziers Employers Association, who have access to the state system.
Senator Crane - So that is why it would be important for you
to be able to shift from one to the other?
Mr Rice - Most definitely." [31]
*Mr Keith Rice, Director, Industrial Relations, Tasmanian Farmers'
& Graziers Association
2.15 International Experience
Senator Crane - One thing I must say--and I think this is about
the third or fourth time your organisation has appeared before this
committee on an IR or other matter--is that you are consistent in your
views. They have not changed very much since 1990.
If I could take you to page 10 of your submission under the heading
`Term of Reference (d): the effects of similar provisions in other countries'
where you say:
While ACM does not wish to pursue the detail of legislation in other
countries, we would observe that Australia is one of a very few countries
which has in place a system of compulsory conciliation and arbitration
which covers such a substantial part of the workforce.
Obviously, you looked at that from an international perspective. Could
you expand on the comparison between the role of the AIRC under this
bill as what occurs in other countries, particularly the ones mentioned
here, New Zealand and the United States--I am not excluding other countries;
you may wish to comment on Europe or elsewhere for that matter?
*Mr Watchorn - Perhaps I could respond to that. For my sins,
in a previous life I had some significant involvement with the International
Labour Organisation and was the Australian government representative
in Geneva for three years, having had responsibility for the international
labour area of the then Department of Industrial Relations for a number
of years also.
It is abundantly clear when one is associated with organisations like
the ILO that a system of conciliation and arbitration, such as we have
had in this country since 1904, is very much a rarity. One is constantly
required to stand up in the chambers of the ILO to explain that not
everything is collectively bargained and that there are systems of conciliation
and arbitration. It was the case that New Zealand, Australia and Singapore
for a time during the 1960s and 1970s were really the stand-out examples
of such a system within the ILO, with very few other countries having
similar systems.
New Zealand has obviously changed fairly significantly and so too has
Singapore, although I understand there is still some provision for arbitration
in that country. But our system is very much sui generis viewed across
the board in the international community. In my experience, the buttressing
or the support mechanisms which this bill proposes in terms of minimum
standards is more extensive than is available under collective bargaining
systems and is backed up by the Industrial Relations Commission and its,
albeit, more limited powers in relation to awards. That, however, is far
more extensive than any similar mediation or voluntary arbitration body
in other countries of which I am aware." [32]
*Mr Barry Watchorn, Director, Australian Chamber of Manufactures
2.16 Competition
*Mr Finucane - … Our competitors are not sitting on their
hands--the Brazilians, Indians, Africans--so we need to continue to drive
if we are to be world competitive; and if we are not world competitive
we are not going to be there at all. It is the same equation: increased
production, reduced costs, uninterrupted supply, continuity of supply
and customer satisfaction. If your customer is not satisfied, he is not
going to generate the business for you. That can only come about by having
a competent and cooperative work force which shares those aims. They are
ably and capably remunerated and rewarded. They have rewarding jobs born
of constructive relationships. The focus of our organisations and our
employees is into the next century, not the last. I would like to leave
our presentation at that. These three gentlemen and I are quite happy
to answer questions if you wish." [33]
*Mr Anthony Finucane, General Manager, External Affairs, Hamersley
Iron P/L
2.17 Negotiating an Agreement
*Mr Neil - From my point of view, I did over 90 interviews in
December 1993. A lot of questions were asked by the people I interviewed.
Some were very happy to ask a few questions and others were very, very
careful and they really wanted to dot every `i' and cross every `t'.
They came back numerous times, some with their wives, et cetera. The
intent was to explain the staff system to them very carefully so that
they understood and could make their own decision.
Senator Crane - Were they allowed to take it away?
Mr Neil - Yes, they were given a copy and it was explained to
them in detail. When they took it away quite a few of them came back
and quite a number of wives came back more than once wanting further
clarification. It was made very clear to me, as a manager, and to all
managers, in the very detailed instructions that we had that there was
to be no coercion whatever and that those people who wished to remain
under the award had a right to do so under the law of Western Australia
and under no circumstances were we to allow them to be pressured or
mistreated in any way. We made that quite clear to our supervision and
carried that out very carefully.
**Mr Hutch - There was no coercion whatsoever. I had the opportunity
to speak to Geoff twice because I wanted clarification. I also took
up the company's offer of the opportunity to talk to the principal personnel
adviser. I had some reservations about things that had gone on in the
past and whether they were still relevant and I was told they were not.
At the time that I was considering the contract I was still a member
of the union and I took advice from members of the committee of the union
and I took advice from my wife. After a long process, the only time a
company representative came to my house was at my request because I made
a belated decision to sign over onto staff on New Year's Eve. I rang up
work to say I had decided that I wanted to sign and a company representative
said he would come to see me on his way home, if that was all right. That
was my request and not theirs. There was no coercion. There did not need
to be coercion because people voted with their feet against the previous
system which they had seen as failing." [34]
*Mr Geoffrey Neil, Manager, Railway Operations, Hamersley Iron Pty
Limited
**Mr Mark Hutch, Locomotive Crew Supervisor, Hamersley Iron Pty Limited
And,
Senator Childs - I can understand what you mean by `cooperative'.
Is it true when you said anybody could take along their wife or their
priest that meant anybody other than a union official was invited?
*Mr Finucane - A number of people did take union officials with
them. The process was one of offer, as Phil has explained to you. We believe
the offers were fair and reasonable, in fact, in the average, generous.
A number of people did take union officials along with them. These officials
immediately started to negotiate up the offer. We made it pretty clear
to people that the offer was the offer. We also made it clear to people
that, with the one-third of our employees who have always been on salaried
staff, their remuneration and conditions of employment have always been
determined between their boss and themselves. We have never had the involvement
of unions in the determination of salaries and conditions of salaried
staff." [35]
*Mr Anthony Finucane, General Manager, External Affairs, Hamersley
Iron P/L
2.18 Opportunity
Acting Chair - I am just wondering, from your own points of
view, whether you could briefly describe what has happened. Mr Finucane
mentioned a number of times the change of culture within the organisation.
I am just wondering whether you could briefly describe to the committee
your own view of what you think has been a change of culture, for want
of a better phrase, in Hamersley.
*Mr Hutch--The major change of culture for me has been an unhampered
opportunity to show the company what abilities I possess other than
just being able to drive locomotives, to use those abilities and to
progress in the organisation considerably faster than would have been
possible under the award because of the opportunity to use and display
my abilities.
In November 1993 I was made an engineman one, which meant I was a qualified
main line driver. There were some 100-odd drivers in the system--120 or
whatever it was. I was 119th in the system and I was the junior boy. Other
than for people leaving the company and the company employing other people,
I would have stayed second from the bottom under the award system. Because
of that, the opportunities that I have enjoyed to show my ability would
not have been possible. [36]
*Mr Mark Hutch, Locomotive Crew Supervisor, Hamersley Iron Pty Limited
And,
*Mr Ellis--The culture change that I noticed was with my direct
supervisors, superintendent, that sort of level of management. I saw what
they were doing. They became less commanding and controlling and a lot
more approachable, and it looked quite appealing. Consequently, I am now
a supervisor and I really want to share in that part of the organisation,
the future building and maintaining of it." [37]
*Mr Phillip Ellis, Locomotive Crew Supervisor, Hamersley Iron Pty Limited
And,
*Mr Hutch--I sat down and worked out the staff offer versus what
I was worth under the award. Quite frankly, it was pretty much a close
thing. It was not the money that swayed me; it was the opportunity more
than anything else that convinced me. I sat down and figured it all out
for myself and thought it was a fair deal." [38]
*Mr Mark Hutch, Locomotive Crew Supervisor, Hamersley Iron Pty Limited
2.19 Industrial Package
Senator Childs--You may be aware that the Australian Democrats
have guaranteed passage of the unfair dismissal provisions. I take it
that you would urge the government to take up that offer, irrespective
of the fate of the rest of the bill?
*Mr Mulcahy--We obviously see the legislation as a package of
industrial reform measures that deliver a range of benefits. I have
heard the point of view offered that bits should be taken out and then
put through. From the point of view of our industry, we would like to
see the legislation in general terms embraced, including obviously the
unfair dismissal legislation. We have had discussions with the Democrats
on the issue and talked through many of the issues that were raised
in the bill. We do see benefits. Clearly the current system with enterprise
bargaining has not delivered the outcomes that were anticipated by the
former minister. We believe that, with the changes here, there is more
opportunity for us to encourage our members to develop workplace arrangements
that really suit the market and the demand of the Australian market.
**Mr Cass--Let me put the view, if I may, of the small pubs.
The unfair dismissal provisions, as they stand at the moment, are of
concern to publicans, because they are real issues that come to the
fore. They become fairly public and well known throughout the bar and
through the community. But there are a whole lot of other industrial
relations cultural changes that would be equally as important for the
industry, especially the small pubs side of the industry, as we face
the change towards the year 2000, and as we face the need to change
our style of service to increase our level of service.
Australia's hospitality industry is sometimes criticised for not providing
the high worldwide standard in certain areas. Perhaps we need to look
at that and try to revamp the industry for the eyes of the world that
will be on us come the Olympics and the turn of the century. We need a
whole lot of other changes, not just the bite size chunk, as I have heard
it called, of the unfair dismissal part going through. I think the survival
of the small pub part of the industry is very much dependent on some of
the industrial flexibilities that will be provided by the bill in toto."
[39]
*Mr Richard Mulcahy, National Executive Director, Australian Hotels
Association
**Mr David Cass, Member, Industrial Relations Working Party, Australian
Hotels Association
2.20 Unfair Dismissal
*Mr Mulchay - We had another case recently where there was clearly
enough evidence to suggest that the application lacked jurisdiction.
When one of the advocates from my office questioned the employee's solicitor,
the response we received in this matter was that it did not really matter
whether there was a lack of jurisdiction as they were using the conciliation
conference to see whether they could achieve a cash settlement and they
could always try other tribunals to pursue a settlement. It may be unlikely
that an application such as this would be made under the proposed changes
to the unfair dismissal laws due to the fact, firstly, that a filing
fee is required and, secondly, it would be unlawful to make another
application in a different tribunal in relation to the same circumstances.
We had another instance of an employee giving written notice of resignation
to the employers. However, there was a change of heart later and the
employee contended that she had written the letter whilst stressed and
it was not her intention to leave. The employer had already made arrangements
to employ a replacement and maintained the view that the employee had
formally resigned. In this case, in determining an application for unfair
dismissal, the commissioner found in favour of the applicant, even though
the applicant only gave oral evidence of her stress condition without
any evidence--written or otherwise--which she indicated was the basis
of her choosing to resign. The applicant also stated on oath that she
did not have a job and she wished to be reinstated and that request
was granted. After the hearing, the solicitor of the applicant said
that she really did not want to be reinstated, in fact had a full-time
job and wished for payment instead.
I will just give you two other examples. We had another one recently
of an application for unfair dismissal even though the person had not
worked at the hotel. The applicant contended that she had been offered
a job at the hotel and therefore resigned from her current employment.
The employer contended that the job had not been offered but, rather,
she had been asked to attend a second interview. Evidence was given
that the usual procedures when offering employment at the hotel had
not occurred, including an offer of employment through a letter of appointment
and meeting with the general manager which was the normal practice before
an offer was made. Regardless of this, the registrar granted the applicant's
application, stating that she believed that, as she had resigned from
her job, the applicant must have been expecting a job. The registrar
ignored the evidence from the employer, and in this case the applicant
was awarded $1,500 in compensation even though she had never in fact
worked in the hotel.
The AHA contends that the changes to the unfair dismissal laws in the
workplace relations bill will go some way towards alleviating some of
the problems that have occurred in the past but even stronger legislative
provisions would be required by the government to restore a more even
balance." [40]
*Mr Richard Mulcahy, National Executive Director, Australian Hotels
Association
2.21 Permanent - Part-Time - Casual
Senator Chapman--The submission seems to simply set up a series
of straw men--perhaps I should say straw women--and knock them down.
Your critiques bear no reality to the bill when it is read. Senator
Crane has highlighted the matters of discrimination. You could go through
them one by one if we had the time. In most of the cases, when you look
at the bill, the claims that you make here bear no relationship to what
is actually in the legislation.
*Ms Andrades--Could you give us an example?
Senator Chapman--You refer to part-time work. The legislation
provides for permanent part-time work, which will enhance the capacity
of women to have the pro rata benefits of part-time work. What we have
seen under the current legislation is a massive expansion in casual
part-time work which discriminates against female employees because
they do not have all those pro rata benefits.
Ms Andrades--I take you to proposed section 89A(4) of the bill.
It is in schedule 5, which is on page 26 of my version of the bill.
I do have the version that you do. It states:
The Commission's power to make or vary an award . . . does not include:
(a) the power to limit the number or proportion of employees that
an employer may employ in a particular type of employment.
This is what we are talking about when we say that if you do not limit
the number of part-time workers or casual workers, adverse consequences
can follow.
Senator Chapman--On the contrary. That removes the restriction
that currently exists on permanent part-time work. As a consequence
of that current restriction, you are getting a massive growth in casual
work. It has gone from about 17 per cent to 24 per cent.
Ms Andrades--As far as I am aware, there is no restriction in
the current act on numbers of permanent part-time workers.
Senator Chapman--There is in a number of awards.
Ms Andrades--That is a different question.
Senator Chapman--This legislation is removing those restrictions
so that people can get permanent part-time work and get the pro rata benefits.
[41]
*Ms Carol Andrades, Spokesperson, Women for Workplace Justice
And,
*Mr Mulchay - ...Finally, if I could just refer to the issue of
part-time and casual employees, our organisation strongly advocates the
implementation of more flexible part-time provisions in hospitality awards
to decrease the number of casual employees in the industry. Many casual
employees are considered permanent casuals, usually working approximately
the same hours and same days per week. However, due to the restrictions
of the part-time provision in the award, they cannot be classified as
part time, therefore missing out on many of the benefits available for
permanent part-time employees. A majority of casuals in the hotel industry
are women; the sector for which many groups have expressed the wish to
provide greater certainty and provision of such conditions such as family
leave, holiday pay and sick leave, which are provisions unavailable to
casual employees." [42]
*Mr Richard Mulcahy, National Executive Director, Australian Hotels
Association
And,
Senator Chapman--You also raised the issue of part-time work.
Is it not a fact that under the current legislation we have the problem
that part-time work is developing apace on a casual basis? Casual part-time
workers will increase from about 17 per cent to 24 per cent, most directly
because of the current restrictions that exist on permanent part-time
work within the award structure. Instead of people moving into permanent
part-time work where they get pro rata provision of benefits that full-time
workers get, their work force has been casualised on a part-time basis
and they are in fact thereby disadvantaged. This legislation will allow
for greater scope for permanent part-time work and therefore the provision
of those pro rata benefits to employees.
*Mr Brown--That may very well be the case, but there are no
part-time workers in my department. Certainly, we would be disadvantaged
if we were to become part-time workers.
Senator Chapman--No-one is suggesting that you will become part-time
workers. The intent of this legislation is that those people who are currently
part-time workers on a casual basis will be able to become part-time workers
with permanency and therefore with the pro rata benefits that apply to
permanent part-time work which do not apply to casual part-time work."
[43]
*Mr Michael Brown, Shop Delegate, Shop Distributive & Allied Employees
Association
And,
*Mr Brown--If you read section 89A, subsection (4), it states
there that awards cannot fix minimum or maximum hours for part-timers.
So if I am changed to part-time work, I will only be required to work
the hours that my employer wants me there.
Senator Chapman--The intent of that is because at the moment,
in a number of awards, you have to be employed for at least 16 or 18 hours
a week to be regarded as a permanent part-time employee. Also, in a number
of awards you can only have a certain percentage of the total work force
as permanent part-time employees. As I said earlier, the consequence of
that is that people have been made casual part-time employees, instead
of permanent part-time employees, so they are not getting their full entitlements.
The purpose of removing that restriction is to allow for the development
of permanent part-time work, so those pro rata benefits are obtainable.
[44]
*Mr Michael Brown, Shop Delegate, Shop Distributive & Allied Employees
Association
2.22 Current Boycott Provisions do NOT Work
Senator Crane--So what you are saying in effect is that the
boycott provisions which exist in the current act do not work and, in
terms of when it comes to the nitty-gritty of obeying the orders of
the commission, if it suits the particular party they just disregard
it.
*Mr Simpson--Yes. In this case the company involved appointed
me to go the Industrial Relations Commission on their behalf. I went to
the Industrial Relations Commission; a commissioner of the commission
made an order directing the industrial action to cease; the CFMEU simply
disregarded it and, when it was put to them that they were in breach of
an order of the commission, they simply said, `Well that is life, that
is what we do. Our members have asked us to do that. [45]
*Mr Glenn Simpson, National Director, Industrial Relations, Master
Builders Australia
2.23 Employees not worse off Under State Agreements
Chair--But equally, according to your comment, you consider:
. . . that workers employed under state agreements will be no worse
off than if they had remained under the federal Award or federal certified
agreement.
So there would not be a problem to involve any administration anyway
because you do not believe that workers in this industry would be any
worse off.
*Mr Simpson--That is so.
Senator Crane--I will follow up before I go on to the substance
of the matters I wanted to raise. On the question that the Chair just
put to you with regard to whether there would be a problem having the
federal test apply to going from a federal situation to a state situation,
I would put it to you--and I would like your comment--that you would
then subject the individual to both the federal test and the state tests
and that will have to have additional costs in terms of that because
the tests are not the same.
Mr Simpson--Yes, that is certainly true. As I said to the Chairman,
there would be an additional complexity put into the system which may
lead to difficulties. Certainly it would require those who are looking
at the agreement as drafters of the agreement to apply both the federal
and the state tests to that agreement to ensure that it met both. To
the extent that that involved extra work it would be an extra cost.
Senator Crane--And I would suggest that it would also add the
additional complexity if you got to a situation where--if further down
the track it was shown that it was outside of one or other of the tests--you
would create a legal problem in terms of prosecution. Unless you had
the same test it would be very difficult.
Mr Simpson--That may well be so, Senator." [46]
*Mr Glenn Simpson, National Director, Industrial Relations, Master
Builders Australia
Footnotes
[14] Evidence pp 2080 - 2081
[15] Evidence pp 2122
[16] Evidence pp 1498
[17] Evidence pp 2124
[18] Evidence pp 2125
[19] Evidence pp 2006
[20] Evidence pp 1937
[21] Evidence pp 1938 - 1939
[22] Evidence pp 1939
[23] Evidence pp 2033
[24] Evidence pp 1775
[25] Evidence pp 2034
[26] Evidence pp 2212 - 2213
[27] Evidence pp 2213 - 2215
[28] Evidence pp 2215 - 2216
[29] Evidence pp 1598
[30] Evidence pp 403-404
[31] Evidence pp 410
[32] Evidence pp 2042
[33] Evidence pp 1498
[34] Evidence pp 1509
[35] Evidence pp 1503
[36] Evidence pp 1499
[37] Evidence pp 1500
[38] Evidence pp 1501
[39] Evidence pp 2154
[40] Evidence pp 2147 - 2148
[41] Evidence pp 247
[42] Evidence pp 2148 - 2149
[43] Evidence pp 346
[44] Evidence pp 347
[45] Evidence pp 2194 - 2195
[46] Evidence pp 2193
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