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The Minister for Employment and Workplace Relations, Kevin Andrews, who introduced the Australian industrial relations legislation, speaking at a press conference on 8 November

In May 2005, the Australian Minister for Employment and Workplace Relations, Kevin Andrews, announced that the Howard Government would seek to introduce a series of proposed changes to Australian industrial relations law. Bills to implement the proposed changes were introduced into the House of Representatives by the Minister on 2 November and were accepted, with amendments, by the Senate on 2 December.[1]

The new laws are supported by employer groups such as the Business Council of Australia and the Australian Industry Group, and opposed by the Australian Council of Trade Unions (ACTU) and its affiliated Unions, the Australian Labor Party (ALP), the Australian Greens, the Family First Party, and various church groups.

On 28 November 2005, Dr Don Edgar, founding head of the Australian Institute of Family Studies, released a Family Impact Statement prepared for Unions NSW, it stated that the IR proposals will damage relationships within families.

Scope of the proposed changes

The changes include:-

  • forming a single national industrial system to replace the separate state and federal systems for constitutional corporations;
  • establishing a body to be known as the "Australian Fair Pay Commission" to replace National Wage Cases at the Australian Industrial Relations Commission (AIRC);
  • "stream-lining" of certified agreement and Australian Workplace Agreement making, including increasing the maximum agreement life from three years to five years;
  • reduction in allowable award matters;
  • legislating five enforcable workplace conditions;
  • exempting companies with less than 100 employees from unfair dismissal laws;
  • exempting all companies from Unfair dismissal laws where dismissal is for a bona fide operational reason;
  • increasing restrictions on allowable industrial action;
  • mandating secret ballots for industrial action;
  • discouraging pattern bargaining and industry-wide industrial action.

On October 9 2005 the Howard Government launched its "WorkChoices" guide and announced that some further changes and concessions had been made to the package, the concessions widely-credited as being the result of union lobbying. The Opposition Australian Labor Party described it as "sugar-coating a poison pill"; the Australian Council of Trade Unions described it as merely a "re-presentation" of the old package.

Introduction of the Bill into Parliament

The Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was introduced into the Australian House of Representatives on November 2 2005 by the Minister for Employment and Workplace Relations, Kevin Andrews.

The Labor Party claimed it was not provided with enough copies of the Bill when it entered the Parliament. They mounted a campaign against the Bill in Parliament throughout the day. Opposition members continually interjected Government members during Question Time, leading the Speaker (and later the Deputy Speaker) to remove 11 of them.[2]

The Bill passed through the House of Representatives on 10 November and was introduced into the Senate later that day by Special Minister of State, Senator Eric Abetz.[3][4] The Bill was passed, with ammendments, by the Senate, by a vote of 35-33 on 2 December 2005.

The Bill received the Royal Assent on 14 December. The bulk of the changes will commence on Proclamation, which is expected to occur during March 2006.

Opposition to the changes

File:Combet1.JPG
Greg Combet, Secretary of the Australian Council of Trade Unions, tells a media conference that "the Australian labour movement will overturn this legislation, no matter how long it takes." He was speaking on November 2 2005, shortly after the government introduced its legislation into the Australian Parliament.

In response to the Howard Government's WorkChoices package, the Australian Council of Trade Unions, the peak association for Australian trade unions, launched its "Your Rights at Work" campaign opposing the changes. The campaign involves mass rallies and marches, television and radio advertisements, judicial action, e-activism, and, potentially, industrial action.

The week of action culminated on Friday 1 July, 2005 with a "SkyChannel" meeting of union delegates and members organised by Unions NSW. The main part of the meeting was broadcast from Sydney with links to more than 200 locations around New South Wales. According to official figures from Unions NSW, over 103,500 attended the meetings, with the largest attendances being at being Sydney Town Hall (20,000), the Wollongong Entertainment Centre (6500), the Rooty Hill RSL (5000), Newcastle Panthers Club (4000). The meeting was followed by a large rally in Sydney and events in regional areas. One public opinion poll found 60 per cent of respondents were opposed to the industrial relations changes.

Campaigning

The ACTU's campaign (with an allocated $8 million) triggered a Government counter-campaign promoting the reforms. Stage one of the campaign preceded the release of the legislation and cost approximately $45.7 million, including advertisements, information booklets and a call centre.[5] A subsequent stage of the campaign has been announced.

The Government argues that such expenditure is normal procedure when introducing radical change, citing the example of the GST advertising.

The ALP, minor parties and the ACTU have attacked the advertising campaign, describing it as party advertising funded from general revenue. ACTU President Sharan Burrow has called the ads deceitful.[6]

The expenditure was challenged in the High Court of Australia by the Australian Labor Party and the Australian Council of Trade Unions, on the grounds that the expenditure was not approved by Parliament. On September 29, the High Court rejected this argument in a majority decision.[7]

The Business Council of Australia is to spend approximately $6,000,000 supporting the laws[8] and the NSW government is spending approximately $300,000 opposing them.

National Day of Protest

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On 15 November, 2005, the ACTU organised a national day of protest, during which the ACTU estimated 546,000 people took part in marches and protests in Australia's state capitals and other cities.[9] The rallies were addressed by State premiers and religious leaders. Other notable Australians, including former Prime Minister Bob Hawke, also spoke in opposition to the industrial relations changes. John Howard said that the protests will not change his policy and employer groups estimated that 95% of the workforce did not attend.

Significant proposed changes

Changing dismissal protection laws for some employees

Employees of businesses employing up to 100 staff will not come under the protection of unfair dismissal laws, introduced by the Paul Keating Labor Government in 1993. Employees of larger businesses will not be protected if they are dismissed for 'bona fide operational' reasons.

The Howard Government argues these laws have stifled business growth and meant less jobs. It argues up to 70,000 extra jobs will be created. This figure is much disputed. The Government also argues that unfair dimissal laws are open to abuse. In the alternative it has offered a payment of $4000 to people who have been unlawfully dismissed to help with legal costs.[10] An employee's grounds to dispute on the basis of unlawful dismissal are more narrowly restricted than to do so on the basis of unfair dismissal; these include grounds such as racial discrimination, family commitments and where the dismissal arose as retaliation for an employee's complaint.

Forcing all corporations into the Federal system

All corporations will be forced into the new WorkChoices system, which the Howard Government argues is valid under the Constitution of Australia. The Howard Government is relying on the corporations power of in Section 51(xx) as the entire basis of its new laws. This will replace the current system which mixes this power and that of the labour power of Section 51(xxxv) which states that Commonwealth may make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State"

All state governments have announced that they will be challenging the Constitutional validity of the WorkChoices laws in the High Court of Australia. This challenge looks likely to be supported by the ACTU and Unions NSW. Every state and territory of Australia currently has a Labor leader.

While claims have been made that the effect of the changes will be to create a single national system, in practice, each of the State systems will remain in place and continue to apply to employers that are not found to be trading, financial or foreign corporations. Such employers will include sole traders, partnerships, charities and may include other organisations such as State and Local Government bodies.

Scrapping the "No-disadvantage Test" for individual contracts

Currently individual contracts known as Australian Workplace Agreements (AWAs) must pass the no-disadvantage test which means that when compared to the relevant award employees are not meant to theoretically be worse off. Under the proposed changes AWAs would only have to meet Fair Pay Commission standards, which is essentially the minimum wage in Australia.

Those who support the scrapping of the no-disadvantage test say that it is too complex and argue it will create more opportunities for unemployed people to have a job. The example of "Billy" was used in material supporting the Government's position.

Unions and other groups opposed to WorkChoices say that Billy is a perfect example of why the new laws are unfair and will lead to bosses exploiting their workers.[11]

Streamlined process for agreement certification

Currently, enterprise bargaining agreements (EBAs, also known as certified agreements) must be lodged and certified in the Australian Industrial Relations Commission (AIRC). The proposed changes will transfer responsibility for overseeing the agreement certification process to the Office of the Employment Advocate, which will have some of its powers transferred to the Office of Workplace Services. Instead of appearing before a commissioner, parties to an EBA will only be required to make written submissions.

This new process has been criticised by those opposed to WorkChoices because it will give unions less opportunity to scrutinise and intervene in what they see to be unfairly-drafted EBAs. Its stated intention is to improve the turn-around time for EBA certifications.

Senate Inquiry

An inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005 was held by the Senate Employment, Workplace Relations and Education Committee, to which the Bill was referred once it was introduced into the House of Representatives.

Five days were allowed for submissions to be made to the committee, with the closing date being 9 November. Five days of hearings are scheduled to be held at Parliament House in Canberra commencing 14 November, with the committee reporting to the Senate on 22 November.

This decision to have a rather short inquiry has been criticised by some people who claim that this is an attempt by the Government to avoid proper scrutiny of the Bill.[12]

As at November, the Senate has received more than 4,500 submissions, from which only 173 have been published on the website. The committee has not individually acknowledged and published all submissions, due to the large number of submissions, at least partially caused by ACTU's campaign against WorkChoices, which included setting up a form on its website by which people could make a submission [13].

On November 14, the Senate Inquiry began its five-day hearing -- in which only a fraction of the submissions will be heard -- with the submissions of State and Territory Industrial Relations Ministers and representatives. The representatives were each allowed only seven minutes to address the Inquiry, during which they criticised the package as being unconstitutional and undermining the rights and conditions of workers.[14]

Debate and reaction

The Howard Government argues that the reforms are the next necessary step in the deregulation of the Australian economy. Workplace Relations Minister Kevin Andrews stated that "We have seen 1.7 million extra jobs created in Australia, more than a 14% increase in real wages. Part of the reason for that is because of the reforms that we made in 1996."[15] The Government argues that employees will have more choice and flexibility and this in turn will lead to higher productivity.[16]

Unions, opposition parties and academics argue that there is no economic evidence to support the Government's claims that the changes will stimulate productivity and raise wages. They argue that WorkChoices offers a one-sided choice and flexibility firmly in favour of employers and that the régime will leave unskilled and marginalised workers worse off. Comparisons have been made between this legislation and the Master and Servant Law of the nineteenth century.[17] The ACTU claims credit for real wage rises over the past decade and point out that the Government has opposed every increase to the minimum wage since its election; had the AIRC accepted the Government's Living Wage submissions, the minimum wage would be lower by more than $50 per week. They point to the fact that job applicants can be made to sign an AWA as a condition of employment, and that existing employees can be unreasonably pressured into signing the contracts through unrestricted employer lockouts. Some have argued that the laws may be in contravention of ILO Convention No. 98 in that they place restrictions on collective bargaining and organisation: Australia is the only country in the OECD in which there is no protected right to collective bargaining.

On November 16 2005, a statement criticising the changes was issued by a group of 151 academics, drawn from the fields of economics, law, business and industrial relations studies. In the statement, the group indicated that they "...share grave concerns about the historic and far-reaching changes now proposed for Australia's workplace relations and their potential effects upon Australian workplaces, workers, and our larger society and economy." With regards to the Government's claims that the changes would serve to promote and improve productivity, employment and the general economy, the group noted: "These assumptions, while repeatedly asserted, are not supported by evidence, and are contradicted by much of the empirical evidence that is available." In a separate address made the same day to the National Press Club, Sydney University professor of industrial law Ron McCallum also heavily criticised the Bill, describing some of its clauses as "absurd", and maintaining that the "extraordinary re-regulation" went much further than regulations in all comparable countries towards restricting union negotiation rights and controlling collective bargaining processes.[18]

Both sides of the debate on WorkChoices agree that industrial relations will be a major issue at the next Federal election. The legislation has been approved, following the allowance of several amendments on November 30 to gain the support of Senator Barnaby Joyce.

See also

References

  1. ^ Commonwealth of Australia, Senate Hansard (.pdf), 2 December 2005, p. 144.
  2. ^ Commonwealth of Australia, "Parliamentary Debates", House of Representatives: Official Hansard, No. 18, 2 November 2005.
  3. ^ Hansard p36
  4. ^ Hansard p107
  5. ^ Hansard p1
  6. ^ [19]
  7. ^ [20]
  8. ^ [21]
  9. ^ [22]
  10. ^ [23]
  11. ^ [24]
  12. ^ [25]
  13. ^ [26]
  14. ^ [27]
  15. ^ [28]
  16. ^ [29]
  17. ^ [30]
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