Labor Senators' Report
Pragmatic 1.
Dealing with matters with regard to their practical requirements or
consequences. 2. Treating the facts of history with reference to their
practical lessons. 3. Hist of or relating to the affairs of a nation 4.
(also pragmatical )a. concering pragmatism b. meddlesome. c. dogmatic.[1]
1.1
Pragmatic means to principled ends these Bills
are not.
1.2
The four bills that this report addresses are
simply remnants of the Government’s failed Workplace Relations Amendment (More
Jobs, Better Pay) Bill 1999 (hereinafter referred to as the MOJO Bill). The
MOJO bill was itself subject to inquiry by this Committee, and as such the
provisions have already received detailed consideration. The current inquiry
did not reveal any new evidence of any significance supporting the passage of
these bills.
1.3
The Government Senators suggest in their
selective and cursory report that the underlying reason for salvaging the
provisions of these Bills from the wreckage of the MOJO Bill was “the reported
indications that the Democrats would support several technical and procedural
amendments presented in acceptable legislative form”.[2] Simply put, the possibility of
Democrat support was the reason for the introduction of these Bills.
1.4
However, in his Supplementary Report on the MOJO
Bill, Senator Andrew Murray did not indicate any interest in these particular
provisions. On our reading of his report, Senator Murray seemed supportive of
proposals to: improve access for 700,000 award free Victorian workers to the
federal awards system; remove prohibitions for the payment of strike pay; and
require the Employment Advocate to be more “even handed” in approving AWAs.
None of these matters have been addressed in these four Bills, or in the other
two Bills dealing with the Workplace Relations Act introduced by the Minister
since the tabling of the Report.
1.5
These Bills seem destined to fail from the time
they were introduced. There is nothing pragmatic in that.
1.6
A good principle to underpin industrial
relations is “a fair go all round”. The Government Senators’ report claims
this principle is one of the underpinning policy elements of these Bills. We
didn’t invent the phrase, and neither did the Government Senators – it arises
from years of judicial consideration. As noted in the Parliamentary Library’s
Bills Digest on one of these bills:
The principle was expounded in an unfair dismissal case
involving staff of the NSW branch of the Australian Workers Union in 1971, and
a key element of the ‘fair go all-round’ approach was that the tribunal should
not have its discretion fettered, as Justice Sheldon then commented:
In my view, the use of the old
adjectives, with their overtones from other jurisdictions, tends to distort
this basically simple approach in that they can be strained to mean that an
employer can be less than fair in exercising his right to dismiss and yet stand
outside the permissible area within which an industrial authority in its discretion
may act
...
The less fetters there are on the
discretion the better...but it is all-important that it should be exercised
soundly. The objective in these cases is always industrial justice and to this
end weight must be given in varying degrees according to the requirements of
each case to the importance but not he inviolability of the right of the
employer to manage his business, the nature and quality of the work in
question, the circumstances surrounding the dismissal and the likely practical
outcome if an order of reinstatement is made.[3]
1.7
We believe that principle to be as relevant
today as ever. Over the course of this report, the failure of these four Bills
to meet this most basic test of industrial fairness is dealt with. Many
measures seek to remove discretion from the Australian Industrial Relations
Commission (the Commission). We do not seek to accuse the Government senators
of being unprincipled – we encourage them to re-examine their principles as
they apply in the area of industrial relations – and see if they are equitable
and provide for a “fair go all round”. In our view, they do not.
Workplace Relations Amendment (Termination of Employment) Bill 2000
1.8
This Bill substantially replicates Schedule 7 of
the MOJO Bill with a number of changes in accordance with concerns raised by
the Australian Democrats.[4]
In Labor’s Minority Report on the MOJO Bill, we indicated that we did not
support the amendments contained in Schedule 7 on the basis that the proposals
would:
- cut
off claimants from sources of financial and legal support;
- force
them to represent and defend their own interests;
- make
the system more complicated;
- make
settlement more legalistic, and;
- tilt
the balance of influence in unfair dismissal cases squarely and thoroughly to
the side of the employer.[5]
1.9
During the course of this inquiry it became
obvious that although minor amendments to the provisions were made, no attempt
was made to address genuine concerns raised during the course of the previous
inquiry. The proposed changes from the MOJO Bill merely tinkered at the edges.
1.10
Labor Senators concluded in their MOJO Bill
report that there was little evidence and justification to support the
Government’s changes. At the outset Labor Senators believe that additional
evidence to justify the Government’s proposals was not forthcoming from this
inquiry.
Jurisdictional Provisions
Forum Shopping
1.11
Labor Senators note that a number of items are
proposed on the basis of preventing the “scope for forum shopping”.[6]
1.12
Yet, as was pointed out by the Independent
Education Union, these provisions may have some serious unintended
consequences:
The IEU believes this is also the case with Section 170 HBA
which prevents a second application being made in relation to the same
termination. Within the non-government sector, the employing authority of a
very large number of schools and other educational institutions would be
unknown to those who work in them. In some cases, it is a private company, in
others the parish priest, in others, the Roman Catholic Bishop of a particular
diocese, or the Board of an Independent school. This issue of “who is the
employer” has been the subject of rigorous legal argument in the industry and
it is quite likely that staff would not know the correct employer respondent.
For an application to be dismissed because the wrong employer has been
mistakenly notified and a second application is not permitted is grossly
unfair. The right to have your case heard on a matter as important as the
termination of employment should not depend on such a narrow technical issue.[7]
1.13
For this reason the provisions relating to
preventing forum shopping cannot be supported as they are currently drafted.
Eligibility
1.14
Labor Senators note that the provisions
attempting to limit the scope of eligible employees for the purpose of a
termination application are justified on the basis that “decisions by the
Federal Court and the Commission have given rise to issues concerning the broad
scope of the termination of employment provisions”.[8] This Bill attempts to restrict
independent contractors and demoted employees from accessing the termination
provisions.
1.15
As we noted in the MOJO Bill inquiry “the
broadening of categories of employees who are ineligible will lead to a grossly
unjust and unfair system.”[9]
No evidence presented to this inquiry has led us to a different conclusion on
these issues.
Discouraging Unmeritorious Applications
1.16
A number of provisions are directed towards
preventing a party pursuing “unmeritorious claims” or engaging in “conduct that
is merely designed to put pressure on the other party to settle irrespective of
the merits of the case”.[10]
1.17
The Bill attempts to deal with the issue in a
number of ways.
Conciliation Certificates
1.18
The Bill proposes a number of amendments
designed to prevent an employee from proceeding to arbitration where the
Commission is satisfied that an “applicant’s claim does not have a substantial
prospect of success”.[11]
1.19
An additional provision to that included in the
MOJO Bill gives the applicant an opportunity to provide further information in
support of their application, in the event that the Commission certifies that
the application is not likely to succeed.
1.20
The Commission is already obliged under the Act
to issue a certificate assessing the merits of an application at the conclusion
of conciliation. The Commission will consider the certificate on the question
of costs if the matter proceeds.[12]
1.21
Labor continues to oppose these provisions and
are not convinced that the additional change providing a right to the applicant
to present further information overcomes our initial objection. That is, that
it is inappropriate at the conciliation phase to invest the Commission with the
power to dismiss an application. The merits of an application can only be made
after an assessment of all of the evidence. The Shop, Distribute and Allied
Employees’ Association (SDA) submission pointed to an example where an
applicant was advised at conciliation that they had little prospects of
success, yet succeeded when the matter proceeded to arbitration.[13] It appears that Australian
Chamber of Commerce and Industry (ACCI) is also familiar with such cases.[14]
1.22
As was noted by Mrs Yilmaz of the Victorian
Automobile Chamber of Commerce (VACC):
very few conciliators will actually give you a position on whether
or not the application is likely to be successful.[15]
1.23
It is interesting to note that the majority of
employer submissions received supported these amendments, with the exception of
Australian Industry Group (AIG), who considered that “the mechanisms proposed
in the relevant subsections may frustrate rather than promote” the objective of
introducing greater rigour into the processing of ‘unfair dismissal’
applications.[16]
1.24
The potential for this provision to increase
costs was also recognised by a number of other submissions.[17]
Dismissal where the Applicant Fails
to Attend
1.25
The Bill proposes to give the Commission power
to dismiss an application where the applicant fails to attend a proceeding. In
some cases the applicant may have a very good reason for failing to attend and
they should be provided with the opportunity to respond before having the
application dismissed.
1.26
Another objection to this provision is that it
applies to applicants only – not to respondent employers who fail to appear.
As Mrs Yilmaz readily agreed in her evidence, she was aware of occasions where
the employer did not appear at a proceeding.[18]
Costs
1.27
The provisions relating to costs in this Bill do
not differ from those contained in the MOJO Bill. As Labor indicated in our
earlier report, we cannot support these provisions in their current form.
Regulating the Role of Advisers
1.28
One of the reasons the Government justifies
provisions regulating the role of advisers is the perception that advisers are
encouraging applicants to pursue unmeritorious claims. However, the only
evidence pointing to such allegations was contained in submissions and evidence
from employer organisations. In contrast, it must be remembered that
applications had fallen by 49% as a result of the Government’s amendments to
this area of the law.[19]
Also, as was noted by the Victorian Bar:
There is no evidence that the Commission is being flooded by
spurious unfair termination claims. The available statistics demonstrate that
of the 926 unfair termination cases arbitrated by the Commission from 31
December 1996 to 25 June 1999, 662 were decided in favour of the employee and
264 were decided in favour of the employer.[20]
1.29
Of greater concern are allegations, by employers
and/or their representatives, of professional misconduct of legal professionals
in the manner in which cases are conducted.[21]
As was pointed out professional bodies, such as the Law Society, as well as the
Courts regulate the conduct of its professionals.[22] Complaint mechanisms exist
for investigation and action against a lawyer acting in the manner alleged in a
number of the employer submissions. There was conflicting evidence as to
whether employers had availed themselves of such mechanisms.[23]
1.30
In any event, the evidence of Mrs Yilmaz was
that she was not “hopeful of any outcome” if such a complaint was raised.[24] It is extraordinary that a
number of serious allegations of professional misconduct by the legal
profession raised by Mrs Yilmaz’s organisation, and used as the basis of
justifying a number of provisions in this Bill, have not been referred to the
appropriate body for investigation.
Contingency Fee Arrangements
1.31
The Bill proposes to require a representative
from either side to disclose the nature of their cost arrangement to the
Commission. Senator Murray has been an advocate of requiring “no win no fee”
arrangements to be a matter of public record.[25]
However, as has been indicated, it is difficult to see what bearing those
matters will have on the merits of the application.[26] Contingency and no win no fee
arrangements result from escalating legal costs and the inaccessability of the
legal system.[27]
It is inappropriate that they somehow reflect on the merits of the
application. These provisions are not supported.
Penalty Provisions for Advisers
1.32
The Bill proposes that the Federal Court may, on
the application by an applicant, respondent or Minister, award a penalty
against an adviser for encouraging the pursuit of an unmeritorious or
speculative action. These provisions differ slightly from the MOJO Bill
amendments – as the definition of adviser is narrowed to include only those
advisers engaged for a fee or reward and not volunteers.
1.33
One concern relates to the reverse onus of proof
which would “require the representative to vet an applicant’s claim”, thus
placing the “representative in an untenable position.”[28]
1.34
Another concern is the Minister being granted locus
standii under the provisions to make an application for a penalty. Surely
it is up to the parties to determine whether it is appropriate to make a
penalty application, having regard to how the proceedings were carried out.
1.35
Labor cannot support the provisions as they
currently stand.
Additional Criteria for Deciding Unfair Dismissal Applications
1.36
A number of provisions are designed to “assist
in reducing ... special burdens” on “certain types of businesses, especially
small business”.[29]
Termination on the Ground of
Operational Requirements
1.37
These provisions will prohibit the Commission’s
jurisdiction from finding a termination was unfair if the employer can
establish that the termination was effected because of the employer’s
operational requirements, unless there are exceptional circumstances. The
inclusion of exceptional circumstances has been added from the provisions as
they appeared in the MOJO Bill.
1.38
As Labor Senators noted in our previous report,
this “contravenes the right to contest the fairness of termination by workers,
and opens the way to exploitation and injustice for employees”.[30]
1.39
The inclusion of “exceptional circumstances”
does not alleviate our concerns in relation to these provisions. We cannot
support the amendments.
Size of Employers Establishment
1.40
These provisions direct the Commission, in an
unfair dismissal, to have regard to the size of the employer’s undertaking,
establishment or service and any likely impact thereof on the procedures
followed in effecting the termination.
1.41
The Government is of the opinion that the burden
of dealing fairly with an employee fall more heavily on small business, as they
do not have the same access to “legal expertise”.[31]
1.42
We rejected in our previous report that issues
of fairness in the workplace, and particularly in relation to the manner in
which an unfair dismissal is carried out, should not be conditional upon the
size of the employer’s business. All workers are entitled to justice and
fairness. These provisions also ignore the hardship and burden faced by an
unfairly dismissed small business employee.
1.43
These provisions are not supported.
Time Limits
1.44
These provisions restrict the matters the Commission
and the Federal Court can take into account when deciding an out of time
application for both unfair and unlawful terminations. The Government seeks to
curtail the “more generous” approach to extending the time limit which they
perceive has been taken by the Commission and the Court since the 1996
amendments.[32]
The time limitation was amended from the
pre-1996 limit of 14 days from the date written notice was given to the
post-1996 limit of 21 days from the termination taking effect.
1.45
As was pointed out by Slater and Gordon in their
submission to the MOJO Bill inquiry, the 21 day time limit is “a major disadvantage to unfairly dismissed
employees”, in terms of becoming aware of their rights and assessing whether to
proceed.[33]
This is compounded when the employee is from a non-English speaking background
or regional area.
1.46
Against this
background it should be noted that many other actions in civil courts have much
longer time limitations.
1.47
These provisions are not supported.
Compensation for Shock, Humiliation and Distress
1.48
These provisions seek to prevent the Commission
and the Federal Court from including in any damages amount, a component by way
of compensation for shock, distress, humiliation, or other analogous hurt,
caused by the manner in which the employee’s employment was terminated. These
provisions do not differ from those set out in the MOJO Bill.
1.49
The Government did not intend the inclusion of
any such amount in a termination application.[34]
1.50
The Industrial
Relations Court set out the circumstances in which
damages will include an amount for shock humiliation or distress should be
included:
There is an element of distress in every termination. To ensure
compensation is confined within reasonable limits, restraint is required. But
in this case there were unusual exacerbating circumstances that make it
appropriate to include in the compensation an allowance for the distress
unnecessarily caused to Ms Burazin. These circumstances include Ms Burazin
having to suffer the humiliating experience of being escorted from Blacktown's
premises by the police. Having regard to these circumstances, the compensation
assessed by the trial judge should be increased by the sum of $2000, to $5000.[35]
1.51
The circumstances
in which such damages will be awarded require “exacerbating circumstances”.
There has been no evidence to suggest that this is inappropriate nor that the
inclusion of such damages is an affront to justice. Considering that such
damages must not, combined with the other damages assessed, exceed the total amount
of compensation payable under the Act, then it is difficult to sustain the
Government’s objections.
1.52
These provisions are not supported.
Workplace Relations Amendment (Australian Workplace Agreements Procedures)
Bill 2000
1.53
As already discussed these amendment have been
dealt with in detail in 1999 during the inquiry and report into the MOJO Bill,
consequently it is not the intention of the Labor Senators to reproduce the
evidence and findings of that process. It is important to note that the Labor
Senators are of the opinion that the deficiencies identified in that process
remain in the current bill.
1.54
Of particular concern to the Labor Senators is
that the Employment Advocate, Mr Jonathon Hamberger did not appear before the
Committee to makea case for these changes. During the 1999 inquiry
Mr Hamberger appeared before the Committee but did not make a case for the
changes and in fact said on transcript:
I just did not feel it was appropriate for me or my officers to
advocate particular amendments. That is really an issue for the government and
for the minister.[36]
1.55
It appears that the absence of Mr Hamberger from
this inquiry is an endorsement of that view. His written submission on this
occasion also fails to address a number of relevant matters.
1.56
The Committee has been reliably informed that it
was the Department’s initiative to drop the Office of the Employment Advocate
from the Committee’s witness list. This information carries particular weight
given the Department and the Minister’s previous form with respect to Senate
Committee practice. Were it the case that such interference in the conduct of a
Senate committee inquiry took place, it is most improper and does not enhance
the case to extend the Office of Employment Advocate’s powers.
1.57
Ms Lynn Tacy, Deputy Secretary of the Department
confirmed that this Bill enhances Mr Hamberger’s powers as Employment Advocate
at the expense of the Australian Industrial Relations Commission.
Senator
CARR—So the
interpretation I am putting to you would be correct: more discretionary power
would be given to the OEA at the expense of current circumstances where that
discretion is with the commissioner?
Ms
Tacy—Yes,
because the OEA would be responsible in effect for testing all AWAs.
Senator
CARR—Yes, so it
is actually a proposed reduction in the powers of the commission.
Ms Tacy—Yes, it is making the OEA responsible for all elements
of the testing of AWAs.[37]
1.58
The issue of public confidence in the Office of
the Employment Advocate was canvassed in the 1999 Minority report, and no new
evidence has been put to the Committee to refute the conclusions of the Labor
Senators that:
Overall the Labor Senators were not persuaded that the OEA has
not undertaken its role in a biased manner. In any event, lack of public
confidence in the impartiality of the OEA would be enough to dissuade employees
from attempting to seek redress through this office.[38]
1.59
This conclusion has been confirmed and
strengthened by the 11 August 2000 decision of Senior Deputy President Harrison
concerning AWAs in the security industry. The Department’s discussion of this
case, where AWAs had been approved by the Employment Advocate originally and
then subsequent AWAs referred to the AIRC was unconvincing – particularly as no
Departmental officer before the Committee had read the case. Public confidence
cannot be expected to exist in an organisation that conducts its operations in
secret. Justice must not only be done but must be seen to have been
done.
1.60
The Workplace Relations Amendment (AWA
Procedures) Bill 2000 is substantially the same as the provisions of the
MOJO Bill that dealt with AWAs. They may be summarised as:
- provide for AWAs to take effect on the date of signing or, if
later, the date specified in the AWA as the commencing day, or, in the case of
a new employee, the date the employment commences;
- permit employees to sign AWAs at any time after receiving a copy
of the information statement prepared by the Employment Advocate and an
explanation of the effect of the agreement;
- permit an employee party to an AWA that provides for remuneration
of $68,000 per year or less to withdraw consent within a cooling-off period;
- remove the requirement relating to offering identical AWAs to
comparable employees;
-
simplify the approval process by:
-
consolidating the existing assessment of filing requirements and
approval requirements into a one step approval process;
- removing the requirement that the Employment Advocate refer AWAs
to the Australian Industrial Relations Commission where there is concern that
the AWA does not pass the no-disadvantage test – the Employment Advocate would
apply the no-disadvantage test in all cases (subject to principles which may be
developed by the Commission); and
- providing a more streamlined process for AWAs that provide rates
of remuneration in excess of $68,000 per year;
- amend the provisions dealing with the relationship between AWAs
and certified agreements and awards made under subsection 170MX(3) of the WR
Act; and
-
remove the limited immunity available in respect of industrial
action taken in support of a claim for an AWA.
1.61
These issues have been dealt with in great
detail in the 1999 Minority report and only selected aspects will be dealt with
in this report.
Commencement Date
1.62
The legislation proposes that AWAs are to take
effect from the date of signing or a later agreed date or, in the case of, new
employees, the date employment commences. The AWA stops operating on the
earlier of the expiry of 60 days from signing if no application has been made
to the Employment Advocate, the day a refusal notice is issued, it is
terminated or another AWA starts to operate.
1.63
What this may mean is that an unapproved AWA may
operate in excess of 80 days before it is approved.
Senator
CARR—Thank you.
I would appreciate it if you would. I am interested to get the time lines here
because it is feasible, from what you have told me, that within the employer
advocate’s guidelines for there to be a period of up to 80 days and for that to
still meet the guidelines—isn’t that so? It is 60 days for the employer to
notify and at least another 20 days, and still be within these voluntary
guidelines—is that correct?
Ms Tacy—Yes, the 60 plus 20—[39]
1.64
Ms Tacy is being optimistic as a further 8 per
cent of AWAs take longer than 20 day to approve. Labor Senators believe that a
potential 80 day delay in assessing an agreement is a totally unacceptable
outcome.
1.65
Of major concern to Labor Senators is the fact
that in this ‘never-never land’ that employees may find themselves in where
they are subject to an agreement that has not been through any approval
procedures is that the Department failed to adequately answer a question as to
what protections were in place for employees prior to approval of the AWA after
which time the dispute resolution procedures would presumably apply.
Senator
CARR—Can you
help me here? What protection is there for workers in these circumstances if
there is a dispute with their employer during that 80 days?
Ms
Tacy—They have
to agree in the first place. An AWA is an agreement so they have signed the
agreement before it takes effect. There is a cooling off period when they can
withdraw that consent. Within that 20 working days the sorts of processes that
the OEA has involves checking genuine consent and they are also obviously
checking other aspects.
Senator CARR—In that 80-day period—and you are talking 20 but I am
saying, and I think you have agreed, that it is possible for it to be at least
maybe 80 days—what protections do workers have in those circumstances in the
case of a dispute with their employer?[40]
1.66
No convincing evidence was provided to the
inquiry in either submission or in the hearings that persuaded the Labor
Senators that the proposed changes to AWA approval procedures were either
necessary or could be entrusted to the Employment Advocate.
Signing of AWAs
1.67
The Labor Senators believe that the changes to
allow employees to sign AWAs immediately will increase the possibility of undue
pressure being brought to bear on employees particularly those in vulnerable
positions. The ability to access independent advice before signing is
particularly important given the lack of review mechanisms for AWAs after being
lodged. During the 1999 MOJO Bill inquiry a number of serious allegations were
made concerning the manner in which the Office of Employment Advocate has
undertaken its statutory role. Convenience was the primary reason given to
justify the proposed changes. Labor Senators are not convinced that
administrative convenience is a sound reason to remove what little protections
currently exist for employees under the Act.
No NDT for AWAs in excess of $68,000
1.68
The issue of waiving the ‘no disadvantage test’
for AWAs that have salary packages in excess of $68,000 does not appear to have
any logical rationale. Under questioning the Department advised that this
figure had been chosen, as it was “the
figure that was originally in the legislation for termination of employment”.
Senator
JACINTA COLLINS—I
do not think it answers the question about the impact on workers’ bargaining
position but I can understand why you do not want to answer that. Moving on
then to some other aspects of the AWAs bill: the figure of $68,000 has been
chosen as that cut-off for the no disadvantage test. On what basis was that
figure chosen?
Mr
Leahy—That is
the figure that was originally in the legislation for termination of
employment.
Senator
JACINTA COLLINS—And
it is not indexed there either, is it?
Mr
Leahy—Yes, it
is indexed there.
Senator
JACINTA COLLINS—So
why is it not proposed to be indexed here?
Mr
Leahy—That was
a government decision.
Senator
JACINTA COLLINS—Just
more inconsistency.
CHAIR—Policy, Senator Collins.
Senator JACINTA COLLINS—I am not pursuing it, Chair. The officer was
welcome to say that it was not for him to answer. I note that the recovery of
underpayments is to be made in an eligible court: won’t this impose time and
cost burdens on employees who have been underpaid, and isn’t it more
appropriate for this function to be undertaken by the Industrial Relations
Commission?[41]
1.69
The justification is obviously flawed. Even if
Labor Senators were to accept that employees with a salary package of $68,000
were entitled to less protection than other workers there is no justification
for not indexing the amount. Currently indexation has increased the unfair dismissal
figure to $71,200. By any measure the proposal in this bill is
flawed.
Offering identical AWAs to comparable employees
1.70
Labor Senators believe that the proposal to
remove the requirement that an employer must make available AWAs in similar
terms to comparable employees would provide an opportunity for employers to
discriminate between employees. The current provisions do not require that
AWAs be all the same merely that comparable employees have access to the same
terms and conditions of employment. No evidence was presented that persuaded
the Labor Senators that there was a real need for this to be altered.
1.71
Alternatively, the inflexibility with which the
OEA applies the current provisions is highlighted by their database AWARIS
where:
Most of the employment conditions data are indicative rather
than actual, because these data are collected from the first AWA approved with
each employer. All later AWAs from an employer are assumed to contain the same
provisions as this first AWA and are entered into the database as such...[42]
Simplify AWA approval process
1.72
Labor Senators believe that any simplification
of the AWA approval process cannot be supported if it comes at the expense of
the limited means of review that currently exist. The fact that neither
submission from the Employment Advocate addressed the need for increased powers
and that Labor Senators were unable to question a representative from the OEA
has not persuaded Labor Senators that these amendments are necessary. The
issue of the need for a transparent process was addressed by the ACTU. This is
particularly apt given the apparent conflict of interest of the OEA promoting
and adjudicating on AWAs identified during the 1999 inquiry process.
Senator
JACINTA COLLINS—Ms
Rubinstein, you raised the other issue: if discretion is to go down to the
level of the Employment Advocate, how is public interest addressed?
Ms
Rubinstein—It
would be addressed by the Employment Advocate.
Senator
JACINTA COLLINS—With
no transparency?
Ms Rubinstein—The reason why it was referred to the commission was to
have that way of looking at things. There is no doubt that the Employment
Advocate is under enormous pressure to produce numbers of AWAs. The Employment
Advocate’s performance is judged by the government in relation to the number of
AWAs that are approved. With the best will in the world, that is very
difficult pressure for an individual to be under, and it would be very
difficult to resist. The commission’s current involvement, while inadequate,
is at least some independent break on that process of pressure.[43]
1.73
The AIG also expressed concern that an appeal
mechanism is necessary for reasons of fairness and natural justice.[44]
1.74
Proponents of the need for simplification of the
process have only attempted to remove the small amount of safeguards that
currently exist. There is no significant case for simplifying the approval
process.
1.75
Labor Senators note this point is highlighted in
the recent report Agreement Making in Australia under the Workplace
Relations Act: 1998 and 1999:
The low incidence of AWA refusals (because of failure to meet
the Additional Approval Requirements under s.170VPA of the Act) suggests that
the provisions are generally operating as intended and employers are aware of
their obligations under the WR Act.[45]
and:
Two per cent of AWAs were refused approval in 1998 but less than
1 per cent in 1999...by far the most common reason for refusal of an AWA was a
failure to meet the number of days required fro the employee to hold an AWA
before signing. The proportion refused for this reason increased significantly
in 1999 (from 51 to 85 per cent)_ but it should also be noted that the absolute
numbers involved is far less (29 per cent fewer AWAs were refused approval for
this reason in 1999 than in 1998). The quite technical nature of the provision
(para 170VPA(1)(b) of the WR Act) can create inadvertent breaches. It seems,
however, that employers and employees have both become more knowledgeable about
AWA requirements and are thus less likely to breach them.[46]
Relationship between AWAs and certified agreements and awards made under
subsection 170MX(3) of the WR Act
1.76
No convincing evidence was provided during the
inquiry process that persuaded Labor Senators that the proposed changes were
either desirable or necessary. Given the relatively small number of agreements
and awards certified under s. 170MX, and the bitterness often associated with
such decisions, it is not considered appropriate to allow for these awards or
agreements to be set aside through the use of AWAs.
Remove the limited immunity available in respect of industrial action taken
in support of a claim for an AWA
1.77
It is considered that the right to access
protected action by employees is a fundamental right. The removal of this
right, for even the small proportion of the work force covered by AWAs would be
of concern to the Labor Senators. The Department of Employment, Workplace
Relations and Small Business claimed that:
these provisions enabling protected action to be taken in the
negotiation of AWAs, as they are not relevant to the negotiation of individual
as distinct from collective agreements.[47].
1.78
It is noted that the Department has given no
justification as to why the ability to access protected action is not relevant
to the negotiating process. Further the removal of this right to a class of
employees may once again be contrary to Australia’s international obligations.
1.79
In addition the Department further justifies the
removal of these provisions because:
The AWA industrial action provisions appear to have been used
only in very rare circumstances.[48]
1.80
While Labor Senators agree that the use of
protected industrial action by employers to force employees onto AWAs is not a
practice that should be encouraged, the justifications given in the submission by
the Department are fallacious and could just as easily be applied to provisions
concerning secret ballots which are also not often invoked.
Workplace Relations Amendment (Secret Ballots for Protected Action) Bill
2000
1.81
The issue of compulsory secret ballots for
strike action was canvassed at length in the Committee’s inquiry into the MOJO
bill. No additional evidence has been provided to this inquiry that
invalidates the findings of the Labor Senators in their minority report to that
inquiry.
1.82
The Department in its submission has effectively
criticised the Australian Industrial Relations Commission for the manner in
which it has approached decisions relating to secret ballots. In particular an
application by the management of Denso Manufacturing to order a secret ballot
which was subsequently denied by Watson SDP is used as evidence to support the
proposed amendments. It appears that the Department is now adopting the same
tactics as the Minister and ignoring the fact that the Act provides the discretion
to the Commission order a secret ballot to assist in the prevention or
settlement of a dispute. Clearly Watson SDP did not consider that a ballot
would have assisted in this particular case. We also note that this was an
employer application regarding a ballot amongst employees!
1.83
As justification for these proposed amendments
the Department in its submission has cited the experience of the United
Kingdom. The Minister has also consistently claimed the UK experience as
justification for his policy on secret ballots. When questioned about the UK
experience by the Committee, Mr Hamilton of the Australian Chamber of Commerce
and Industry noted that:
Firstly, the legal context between Britain and Australia, in
this area, apart from the common law, is very different. We have a lot of
provisions about democratic control of the internal affairs of trade unions,
which, as demonstrated by the disastrous Scargill experience in Britain, was
simply lacking. So there is a strong element of democratic control, and always
has been.[49]
1.84
Mr Hamilton recognised two issues that the
proposed amendments ignore. Firstly that there is a vast difference between
British and Australian industrial relations laws and secondly that Australian
trade unions are democratic organisations whose rules are regulated by the Workplace
Relations Act.
1.85
There are considerable differences between the
proposed amendments and the British model this is supported by the Department,
in evidence before the Committee Ms Tacy said:
I acknowledged earlier that
there was some significant differences.[50]
The ACTU in its submission states:
While the UK system is unacceptably complex and technical, and
does lead to a great deal of litigation, it is not as rigid or restrictive as
that proposed in the Bill.[51]
1.86
It is disingenuous of the Minister and the
supporters of these amendments to ignore the acknowledged differences between
the British model and the proposed Australian laws.
1.87
The issue of democracy is also quoted as
justification for these amendments. Labor Senators note that the principle of
democracy could be extended to employers contemplating industrial action or
lock-outs. When this was put to the Department the negative response was
unconvincing.
Senator
JACINTA COLLINS—I
note that you quote in paragraph 27 the ACCI submission to the 1999 inquiry.
The rationale that is quoted about democratic processes could be greatly
extended, couldn’t it? For example, you could give shareholders the right to
vote before employers undertake industrial action such as lockouts or even
secret ballots to end strikes.
Ms
Tacy—A single
employer entity making a decision about lock-outs is a bit different from a
number of different individuals taking industrial action.
Senator
JACINTA COLLINS—What
is the difference?
Ms
Tacy—One is a
single employer entity.
Senator
JACINTA COLLINS—And
the other is a group of single workers.
Ms Tacy—Yes, but they are all making individual decisions about
whether to support collective action.[52]
1.88
Labor Senators are not advocating the extension
of secret ballots to shareholders however it is noted that lock out actions can
have an adverse affect on shareholder earnings through falling dividends and,
therefore, using the same logic that proponents for these proposals use share
holders could also claim the right to be consulted prior to actions which may
affect their financial position.
1.89
As the issues of quorum and the ‘electoral role’
were addressed at length in the 1999 Minority report it is not intended to
repeat them here, except to note that these issues remain as major concerns to
the Labor Senators. Labor Senators support the current secret ballot
provisions as balanced and reasonable for the parties to a dispute.
Tallies and Union Picnic Days
1.90
The issue of meat tallies was dealt with at
length during the Committee’s inquiry into the MOJO Bill. The conclusion of
the Labor Senators, which was supported by Senator Andrew Murray, was that this
issue was best dealt with by the Australian Industrial Relations Commission.
This finding has been justified by the Full Bench decision of 1 September
2000. Labor Senators maintain that the appropriate forum for dealing with the
issue of tallies is the AIRC. The AIRC has now determined the matter in one
Award and established a process which should progress expeditiously. This
process, unlike the provisions in the Bill, will also ensure that appropriate
safeguards established by the Commission are maintained.
1.91
The issue of union picnic days was also
addressed during the 1999 inquiry. The justification by the proponents of
these amendments is the fallacious claim that unions account for only 20 per
cent of the workforce.
Senator FERRIS—But we are saying that there is still a choice. Given
that union membership is now around 20 per cent of the workplace, you are
saying that those people should not have a choice about continuing to work on
that day if they want to, by saying, ‘We don’t particularly want a public
holiday for that day, we’d prefer to work.’ You are imposing a situation on 80
per cent of a workplace which may be non-unionised.[53]
1.92
Senator Ferris is not correct in her assertion,
according to the Australian Bureau of Statistics union density currently stands
at 26 per cent of the workforce. However to take Senator Ferris’ reasoning to
its logical conclusion other public holiday must surely be in danger of attack
by this Government. In 1950 the Gallup poll found that 23 per cent of
Australians went to church weekly – in 1997 this figure had fallen to
18 per cent. ABS statistics indicate that in 1947 35 per cent of
Australians went to church within a fortnight by 1983 despite changing the
question to a monthly measure church attendance was down to 28 per cent.
1.93
Similarly support for the Monarchy in Australia
according to the Morgan poll has dropped from 77 per cent in favour of a
Monarchy in June 1953 to 38 per cent in favour of a Monarch in November 1999.
On this basis the Queen’s Birthday holiday would have to be in danger.
1.94
No one is seriously contemplating the removal of
Christmas, Easter or the Queen’s Birthday as public holidays despite the fact
that the reasoning used by Senator Ferris is just as valid.
1.95
Labor Senators conclude that the amendments are
based on an ideological agenda and not the facts.
1.96
The facts include issues such as that picnic
days often apply with respect to non-union members or enterprise picnic days.
They form part of the Commission’s public holiday’s test case and these matters
should remain with the Commission.
1.97
Finally we note caution expressed by AIG that
application and hearings associated with this exercise may result in the
wastage of significant resources to no practical benefit. This is particularly
concerning given the serious funding constraints faced by the Commission.
Conclusion
1.98
In summary these bills represent a rehash of
matters addressed during the inquiry into the Workplace Relations Amendment
(More Jobs Better Pay) Bill 1999. There has been no new evidence of any
significance promoting the measures contained in these bills, accordingly Labor
senators recommend that the bills be rejected.
| ...................................... |
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| Senator Jacinta Collins |
Senator Kim Carr |
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