INDUSTRIAL RELATIONS POLICY A CRITICAL REVIEW Michael … · 2020. 5. 1. · INDUSTRIAL RELATIONS POLICY 1977-1998 77 First, interlocutory injunctions and damages claims under common

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INDUSTRIAL RELATIONS POLICYDEVELOPMENTS 1977-1998:

A CRITICAL REVIEW

Michael Quinlan

The 1996 election of a federal Coalition government and the introductionof the Workplace Relations Act have been widely seen as constituting aturning point in Australian industrial relations. This paper criticallyassesses the Coalition's reform agenda and its ramifications. It placesthese reforms within the broader context of Australia's distinctive modelof labour law, challenges to this model which cornmenced at state levelin the 1970s, and changes to industrial relations framework made underthe previous federal Labor government (1983-96). Looking at theevidence on productivity, union organisation and recourse to arbitration,minimum standards and equity, it appears that in many respects theWorkplace Relations Act has served to accentuate problematic outcomesof the Labor reforms. At the same time, Coalition policy has introducedsome new dimensions and has the capacity to fundamentally shift thecharacter of Australian industrial relations.

The Australian Arbitration Model and LegislativeReform 1977-96

In order to assess the significance of the 1996 Workplace Relations Act itis essential to place this legislation and subsequent developments in thecontext of the arbitral model and changes made to this under thepreceding federal Labor government (1983-96).

76 JOURNAL OF AUSTRALIAN POLITICAL ECONOMY No 42

For most of the 20th century Australia possessed a distinctive frameworkfor regulating industrial relations, known as compulsory arbitration.Operating at both state and federal level, it entaiied a high level ofcentralisation and state regulation of unions, wages and workingconditions. In return for being closely regulated under state and federalarbitration laws, unions enjoyed legal recognition (the right to recruitworkers, enter workplaces and bargain with employers) 'and someencouragement (through provisions affording limitedforms of preferenceto union members). Where parties could not reach agreement, or wherean employer refused to deal with a registered union, the relevantarbitration tribunal could intervene and deliver a binding ruling. Thisdiscouraged outright union avoidance by all but the most determinedemployers. Wages and a large number of other employment conditions(hours of work, shift breaks, overtime penalties, permanent/casual ratios,crib times, etc.) were regulated by a system of predominantlyoccupational or industry-based awards. Unions were also able tonegotiate superior conditions on a industry/occupation or specificworkplace basis. The award system established a pervasive set ofemployment standards (covering over 80% of all workers) which wereenforceable by either unions or government inspectorates. In practice,unions did the bulk of enforcement and while this process was neverunproblematic the limited number of awards and relatively unfetteredentry rights gave Australian unions an advantage over those in countrieswith more decentralised systems. Most disputes between workers andemployers were resolved without recourse to arbitration but access totribunals clearly influenced the behaviour of the parties. While theindustrial relations frameworks of most industrialised countries contain amixture of compulsion and voluntarism, the Australian system placedgreater emphasis on compulsion than its counterparts in the United Statesand Britain.

Arbitration enjoyed broad community support, and several attempts togut the federal system (in 1919 and the late 1920s) failed conspicuously.However, from the late 1970s onwards the system came under increasingchallenge. Aided by a group of lawyers and consultants, some employergroups (especially the National Farmers' Federation) and conservativestate and federal governments began to explore non-arbitral avenues forchallenging union activity. These challenges took three forms.

INDUSTRIAL RELATIONS POLICY 1977-1998 77

First, interlocutory injunctions and damages claims under common lawor sections 45D,E&F of the federal Trade Practices Act (inserted bytreasurer John Howard in 1977-80) were use to defeat secondaryboycotts and win substantial victories over unions at Robe Rive, DollarSweets and the Mudginberri abattoir (Bennett, 1994a:84-90,188-90). Theuse of corporate laws to regulate industrial relations sel a precedent thatwas to be significantly extended in the 1990s.

Second, a number of states introduced essential service' legislation andother legislation that enabled the government to bypass arbitral tribunals,effectively ban some forms of union activity and directly intervene indisputes. The most dramatic example of this occurred in 1985 when theQueensland government defeated a strike over contractors at SEQEB bysacking 800 workers and introducing legislation establishing a perpetualstate of emergency in the industry.

Third, from 1988 onwards incoming conservative state governmentsbegan to modify central features of the arbitration system under thebanner of eliminating rigidities, introducing greater flexibility/choice inworkplace negotiations and enhancing enterprise-based productivity. Keychanges entailed reducing the role of awards (Victoria abolished themaltogether), removing preference provisions, restricting unions entry andbargaining rights, curbing tribunal powers and establishing non-unionbargaining streams including (in some jurisdictions) individualagreements (Quinlan, 1996a:6-8). Evidence that non-union andindividual agreements were drawn up by employers (often assisted byconsultants), involved little if any real bargaining, and almost alwaysentailed a significant reduction in employment conditions (see Goodwin& Maconachie, 1990) was beside the point. These legislative changeswere an extension of the neo-liberal policy agenda being pursued in otherareas.

Although the federal Labor government (1983-96) introduced neo-liberal'competition' policies in a number of areas (such as banking andfinance), it initially resisted making similar changes to industrialrelations, preferring instead to consolidate the existing system along thelines recommended in the 1985 Hancock report. This included measuresto rationalise union structure, something in keeping with the ACTU'sambitious plans to merge 300 unions into 25 industry-based unions. The


corporatist Accord between the ACTU and Labor government involvedan explicit trade-off of wage restraint in retwn for job creation and thesocial wage (medicare, superannuation and improved 'occupational healthand safety). Prior to 1987 wage movements were determined in acentralised fashion reminiscent of the Wage Indexation policy a decadeearlier. However, in the late 1980s a strange alliance of microeconomicreformers and powerful unions seeking negotiating flexibility .led to theintroduction of the Second Tier and later Structural Efficiency Principles(award restructuring). These involved a mixture of pattern bargainingand negotiated efficiency trade-offs in return for additional wageincreases. This dual system of regulated decentralism was short-lived,forming an interim step to a more decentralised system of enterprisebargaining whereby the award system was retained as a residual (thoughcomprehensive) safety net.

Changes to federal industrial relations law made in 1988 and 1992 hadfacilitated this shift by providing for stand-alone and single unionagreements on greenfield sites and restricting the role of the AustralianIndustrial Relations Commission (AIRC). Although the AIRC was lessthan enthusiastic about a general shift in wage fixing to productivitybased enterprise bargaining (and some employer groups, notably theMetal Trade Industry Association (MTIA), shared its misgivings) it hadlittle option but to succumb to the combined pressure of the governmentand ACTU.. Vehement criticism of the Commission stance by ACTUSecretary Bill Kelty masked important divisions within the unionmovement, especially amongst weaker unions who feared they would notfare well under enterprise bargaining. These divisions were papered over.

For its part, by the early 1990s the federal Coalition was advocating aradical refashioning of industrial laws along the same lines as thoseintroduced in Victoria and New Zealand plus some additional featuressuch as enterprise unionism (see Jobsback! 1992). During the 1993election campaign Labor sharply distinguished its commitment toarbitration and the award system and the Coalition's policies. However,immediately after being returned to office Prime Minister Paul Keatingresponded to criticism led by the Business Council of Australia (BCA)by introducing significant changes to the system. These included aseparate bargaining stream with provision for both union-based


enterprise agreements (called Certified Agreements) and non-unionagreements (called Enterprise Flexibility Agreements or EFAs). TheAIRC's role in the bargaining process was reduced but the award safetynet was retained (coverage by an existing award was a precondition forestablishing an agreement). Provision was made for those workers unableto secure wage increases through bargaining. All agreements weresubject to a no net disadvantage test (i.e. agreements should not lead toan overall fall in existing wages and conditions). In return for acceptingthese concessions unions obtained stronger provisions on unfairdismissal and a provision overriding state laws containing standardsinferior to federal law. Employer access to s45D,E&F of the TradePractices Act was also inhibited by inserting the AIRC into the process.

The changes represented a significant departure from previous Laborpolicy and blurred the formally sharp distinction with Coalition industrialrelations policies. The Coalition enhanced the impression of convergenceby modifying several stark aspects of Jobsback (1992) in the run up tothe 1996 federal election. Substantial differences remained but they werenow buried in detail or ambiguities in the mechanics of how Coalitionpolicy was to operate.

The federal Labor government's enterprise bargaining push receivedstrong support from ACTU secretary Bill Kelty. Kelty had grownincreasingly critical of the AIRC and argued it was necessary to prepareunions for the tougher environment that would follow the election of aconservative government. The Australian Manufacturing Workers'Union (AMWU) and others who believed they would do bener under adecentralised system supported Kelty. More militant unions in theconstruction, mining and transport were also the major beneficiaries ofreduced access to s45D,E&F. On the other hand, unions like the TextileClothing and Footwear Union, with limited bargaining power, were notenthusiastic. These changes posed a threat to their membership, alreadyweakened in the clothing industry by tariff cuts and growing numbers ofoutworkers (Mayhew and Quinlan, 1998). The ACTU leadershipmanaged to stymie criticism from within apart from its largest branch,the Labor Council of NSW. Several prominent feminists and women'spolicy advocates like Quentin Bryce also expressed grave concerns thatthe move away from awards would disadvantage women and pay equity


gains made over the preceding decade. In July 1994 then ACTU assistantsecretary (now president) Jennie George (1994: 15) rejected this criticism,arguing that the jury was still out. George had come from one of the fewrelatively powerful unions with a female-dominated membership(teachers) and the jury was not out for long.

The Coalition Reform Package

In March 1996 a federal Coalition government was elected with a strongcommitment to reforming industrial relations. It rapidly introduced theWorkplace Relations and Other Legislation Amendment Bill. Labor's1993 reforms enabled the Coalition to simultaneously portray the Bill asa bold new step and as an incremental shift to existing laws. In reality thechanges were far from incremental. To grasp the government's reformagenda and future plans it is essential to examine both the Bill and thefinal legislation.

First, the Bill proposed to reduce the scope of devices designed tomaintain a broad set of minimum standards and to protect morevulnerable sets of workers such as women, immigrants and youngworkers. In particular, the Bill proposed:

•

•

•

•

that awards no longer to be 'maintained at a relevant level' but onlyat fair minimum wages. In making a safety net award theCommission would only be able deal with 18 specified matters andwould, for instance, be precluded from setting quotas orminimum/maximum hours for different categories of employees(e.g. part-timers):

to abolish the 'no disadvantage' test along with the Commission'spower to intervene to ensure equal remuneration for work of equalvalue;

to extend the range of reasons under which the AIRC could refrainfrom hearing a dispute or establishing an award:

to give primacy to state awards, agreements or regulations overfederal awards even where the fonner entailed inferior standards;and

INDUSTRIAL RELATIONS POLICY 1977·1998 81

• to remove the right of independent contractors to apply to the AIRCto review their contract on the grounds that it was harsh or unfair.

Second, the Bill proposed to circumscribe the powers of the AIRC andestablished a new body, the Office of Employment Advocate (OEA). Theproposed constraints on the AIRC were more significant than the 1993amendments and would amount to a re-orientation of the system. Inparticular, the Bill proposed that:

• the Commission's arbitral powers were -to be exercised as a 'lastresort' rather than 'where necessary';

• limits be placed on the Commission's ability to hear matters whereworkers were covered under state awards or agreements or tointervene in"matters addressed by a state tribunal.

• the OEA be responsible for informing employees and employers(especially small business) of their rights/obligations under the Act;registering Australian Workplace Agreements (AWAs); andinvestigating alleged breaches of AWAs or freedom of associationprovisions;

Third, the Bill proposed a number of significant changes to the types ofagreements that could be entered into by:

• replacing the single stream of certified agreements with severalstreams that no longer required a union and could be made betweenan employer and their employees as a group. This now redundantEFA provisions were repealed;

• introducing a new stream of non-union individual agreements knownas Australian Workplace Agreements (AWA). This was the firsttime the federal system would include individual agreementprovisions along VictorianlNew Zealand lines. An AWA was to beindividually signed and filed with the Employment Advocate. Bothparties could use bargaining agents (for employees this includedunions, consultants or consultative committees). AWAs wouldoverride federal awards or state agreements but not a federalcertified agreement (to the extent of any inconsistency); and


• retaining enterprise flexibility clauses in awards but providing thatunions would only be heard if at least one member's employmentwould be altered.

Fourth and finally, the Bill proposed significant changes to union rightsto recruit members, monitor compliance with minimum standards,bargain or take action on behalf of employees, including members ofother unions. In particular, the Bill proposed to:

• restrict the right of union officials to enter the workplace to ensureobservance of an award. Union entry was not listed as an allowableaward matter and union officials would only be able to enter aworkplace 24 hours after notifying an employer they had received awritten invitation by an employee who was ~ union member;

• place new restrictions on union rights to be heard or bargain (seetypes of agreement);

• remove the power of the AIRC to insert preference provisions tounionists in awards and insert a new provision on freedom ofassociation;

• repeal the 'conveniently belong' rule that sought to minimise andrationalise union representation. This change would facilitate theregistration of multiple unions with similar eligibility rules,including enterprise unions;

• require union rules to provide for establishing independent enterprisebranches;

• include a provision enabling the disamalgamation of amalgamatedunions; and

• reinstitute unfettered employer access to s45D,E&F of the TradePractices Act.

The Bill was held up for six months while the Senate undertook aninquiry into the refonn measures. The Inquiry committee - with amajority of Opposition and minor party members was inundated withsubmissions. The Senate (1996) report made scathing criticisms of manyaspects of the Bill, especially the weakening of the AIRC's role and thelikely effects on workers with little bargaining power, especially womenand non-Anglophone migrants. After intense negotiations, the

lNDUSTRJALRELATIONS POUCY 1977-1998 83

government garnered Democrat support for an amended Bill that waspassed by the Senate in late November 1996.

The major concessions won by the Democrats were to restore somepowers to the AIRC, including the ability to vet problematic AWAsreferred to it by the Employmenl Advocate. Paid rates awards wereretained where customary and consent awards could be converted intocertified agreements. Two items were added (superannuation andoutworkers) to the original 18 'allowable matters' in awards (s89A), acompromise that still drastically reduced the scope of awards. It excludedissues like occupational health and safety as well as areas of traditionalaward coverage such as casual/permanent and pan-time/full-time ratiosthat were especially critical in a context of labour market change. TheDemocrats agreed to the use of 'junior rates' subject to an inquiry(Workplace Relations Minister Peter Reith has subsequently sought topre-empt its findings). Federal awards were to retain their pre-eminenceover state agreements/regulations. The government also responded tojoint employerlDemocrat concerns over removing the 'convenientlybelong' rule by retaining an amended version that shifted the onus ofproofonto the union with existing coverage (Agreement, October 1996).

A new 'no disadvantage' test applied to certified agreements and AWAs.The AIRC had to be satisfied that a certified agreement met the test, was'agreed to by a majority of employees (except on greenfield sites), andhad been appropriately explained to them. Where an agreement coveredpart of a business, the Commission also had to be satisfied it did notunfairly exclude some employees (s 170LT). Finally, the Commissionhad to be satisfied the agreement was not discriminatory on the groundsof sex, colour, disability, preguancy, religion, political opinion, age,marital status, sexual preference and national extraction (s 170LU). Fortheir part, AWAs had to be approved by the Employment Advocatelocated in the Department ofWorkplace Relations. This required passingthe no disadvantage test (s 170VPB (I)(a)), being agreed to byemployees (s 170VPA) and incorporating provisions concerningdiscrimination, dispute resolution and disclosure (s 170VPB(l)(b) & s170VPA). When in doubt, the Employment Advocate could suggest thatparties amend the AWA, require an undertaking the agreement will notdisadvantage the employee (s 170VPC(2), or refer the maller to the


AIRC (s l70VPC(3)). In December 1996 the government appointed MrAlan Rowe (a lawyer with extensive experience in public administrationand former principal adviser to the Business Council's IndustrialRelations Study Commission, 1987-9) as Employment Advocate. Vettingby the Office of Employment Advocate proved to be far more timeconsuming than originally anticipated, initially averaging one agreementper officer per day even using a standardised procedure.

While not insignificant these concessions failed to restore the AIRC'srole or modifY critical elements of the reform package, including theweakening of awards and union rights. The Workplace Relations Act1996 did introduce the concept of 'protected' strike or lockout actionduring the bargaining period subject to notice requirements, interventionby the AIRC and protection of property and personal safety (see ss 170WC and 170WD). But this had to be balanced against the widened arrayof limits on union activity. Notably, the Act introduced the concept ofenterprise associations that could compete with existing unions innegotiating certified agreements. To obtain registration an enterpriseassociation had to cover persons employed at a business (or one or moreoperationally distinct parts of such a business (sI88(1)(c) & s187B) andhave 50 members (up from 20 in the original Bill sI89(4)(c)). The Actalso facilitated fracturing of existing unions by providing a mechanismsto de-amalgamate those amalgamated under the Labor government'ssuper union legislation (ss. 253ZH - 253ZU). Coalition legislationreplaced the stress on effective organisation designed to redressinequalities in bargaining power with a right for workers to bargainindividually and in enterprise unions. Historically, company/enterpriseunions are not new to Australia. But the Act marked an abrupt policyshift by formally promoting small bodies with limited resources, unableto undertake industry-wide campaigns, or exert political pressure. Asairline pilots discovered almost a decade earlier, even highly skilledworkers occupying a strategic position in the labour process can bereplaced.

In sum, the Worlq)lace Relations Act significantly widened the scope foremployers to make non-union agreements. Like laws in several states,the Act introduced a regulated fonn of individual employment contract a concept whose closest parallels are the pre-collectivist master and


servant laws of the 19'" century. Further, the Act placed significantrestrictions on union recognition, entry and bargaining rights as well ascurbing the role of awards, arbitration and the AIRC. The anticollectivist philosophy underpinning the legislation extended toterminology. The substitution of the term 'workplace relations' for'industrial relations' was symbolic of a desire to expunge the macro andpluralist connotations of the latter with the micro-unitarist visionpreferred by the Business Council of Australia (1989) and neo-liberalpolicy advocates (see Hilmer et ai, 1991). In this respect, the Actrepresented an ideological reinterpretation of the employmentrelationship as well as a practical attempt to reshape capitaVlabourrelations.

Notwithstanding this, assessing the impact of the Workplace RelationsAct faces a number of obstacles. First, the changes are complicated bythe fact that legislation built on earlier state-level developments as wellas federal reforms made under Labor, especially those after 1988. Insome areas Labor initiated trends (like a non-union bargaining streamand reducing the role of AIRC) that the Workplace Relations Act servedto accentuate; while in other areas (like the role of awards and theintroduction of individual contracts) a more decisive break has occurred.Second, relatively little time has elapsed since the passage of theWorkplace Relations Act and the Coalition government has mootedfurther policy changes following its re-election in October 1998.Moreover, policy changes made in the area ofemployment/unemployment and social security are also likely to impacton industrial relations. Third, over the past 20 years the Australian labourmarket has undergone a number of significant changes, including asubstantial growth in temporary and part-time employment, increase useof outsourcinglfranchising and growth of small business employment,self-employment, home-based and telework (for a summary see Quinlan,1998). The role of regulatory changes in facilitating these shifts remainsambiguous but it does appear that regulatory forms can influence theimpact of these trends on wage levels, hours of work and otheremployment standards. Given this, the remainder of this paper will nottry to examine the Workp/ace Relations Act in isolation. Rather, it willexamine how Coalition policy has effected existing trends and identifY


new and critical developments, amplified where possible by research onsimilar arrangements in other countries.

The Impact of Recent Industrial Relations Reforms

Industrial relations systems have been seen to play a critical role indeterinining both productive efficiency and social equity (by affectingthe distribution of rewards across the community). As Bennett (1994b)has observed, the legal and institutional framework under whichenterprise bargaining is carried out affects not only bargaining proceSsesbut also outcomes. Critical issues here include the role of unions, thecapacity of workers to bargain without unions, the determination ofminimum standards as a floor for bargaining and reflection ofcommunity interests, avenues for third party intervention and the impactof a more decentralised system on different groups of workers.

Before turning to these issues, it is worth referring briefly to the impactof enterprise bargaining and associated changes on labour productivityand economic efficiency more generally. Arguments that a moredecentralised and 'flexible' system was essential for Australia's globalcompetitiveness formed a touchstone for the neo-liberal think-tanks,business groups and politicians advocating reform. However, frequentrepetition often amounted to a mantra since the accompanying evidence(gleaned from Australia and overseas) was never that convincing, oftenignoring a host of critical mediating factors (Tasman Asia Pacific, 1997).Burgess and McDonald (1990) argue international research hasestablished no clear causal relationship between different systems ofindustrial relations, labour market organisation/flexibility andproductivity growth. At best, the findings are equivocal. A studyundertaken by Dowrick (1993) found that fully centralised or fullydecentralised systems performed best in terms of productivity growth,with the latter slightly outperforming the former. On the other hand, aReserve Bank study (Coelli et ai, 1994). queried the alleged. labourmarket rigidities of the Australian arbitration system relative to otherOECD countries including the USA. Further, advocates of reformconspicuously ignored the growth of especially flexible, sometimesclandestine and outright exploitative work arrangements over the past


decade. This includes growing numbers of casual workers, independentcontractors, multiple-job holders, those working unpaid overtime, homebased workers and even working children (Lafferty et al 1997; Quinlan,1998; and Sydney Morning Herald, 21 March 1998:6). Finally, evidenceon the respective relationships between arbitration, enterprise bargainingor individual contracts and productivity is equally problematic. No clearpattern of fmdings has emerged from studies using aggregate data,individual case studies or comparing the effect of the EmploymentContracts Act in New Zealand. (See SERC, 1996; ACIRRT, 1998; Dragoet ai, 1998; Quinlan, 1996a&b; Boxall, 1996; Philpott, 1996, Rasmussenand Lamm, 1997).

There are two reasons for making these points. First, the absence ofcompelling evidence, nor much desire to accumulate it, suggests that thereform push is driven more by ideology than economic necessity.Second, when we turn to the social and industrial impacts of reform thefindings are rather mor, compelling, something that should be counterposed against the first observation.

Minimum Standards and the AwardlBargaining Safety Net

Unlike some other countries, until recently the issue of minimumstandards attracted little attention in Australia. One reason for this wasthat the award system established a relatively effective baseline on wagesand other employment conditions that were regularly updated. Overseasexperience indicates that minimum wages established by directlegislation can be progressively eroded by inflation and irregularupdating (in the USA for example the current federal statutory minimumwage is around 60% of the lowest adult base-rate in Australian awards).At the same time, awards were far more than a minimal regulatory safetynet. Even very basic awards contained elaborate set of conditions relatingto wages and allowances, hours of work, shift breaks, holiday leaveloadings, sick leave entitlements and a host of other matters built up overmany years. This important observation is too often overlooked in thecurrent debate.

88 JOURNALOF AUSTRALIAN POLITICAL ECONOMY No 42

The 1993 Labor amendments retained awards as a baseline for enterprisebargaining, although it does appear that the resource demands ofbargaining caused unions to neglect updating awards protecting theirweaker members. Lower paid workers unable to secure enterpriseagreements were covered by periodic across-the-board safety netincreases. The last measure was retained by the Coalition although itmade submissions opposing significant increase. The government'sstance had some effect in 1997 but was noticeably less influential in theApril 1998 decision by the AIRC which granted a$10-14 per weekincrease affecting about 30% of wage and salary earners (Workforce,Issue 1160, I May 1998: 1). The new government vigorously opposed theACTU's Living Wage claim which sought substantial wage increases forthe low paid (Harcourt, 1997). Perhaps more critical was the windingback of awards to 20 specified employment conditions. Retirement;misconduct, performance, occupational health and safety (OHS),casual/fractional conversions, appointments, permanent/casual ratios, andsupervisor training were amongst the matters precluded from being thesubject ofminimum award conditions.

These limits, and the loss of award coverage altogether amongst workerslike subcontract drivers, have important implications for minimumstandards. A number of unions tried to counter this by transferring allprevious award conditions into an enterprise agreement. (see for instanceIndustrial Relations and Management Letter, 14(8), September 1997).This required a degree of industrial leverage that many unions did notpossess. Further, even retention as an award matter did not entailcomplete protection. Many awards specified minimum as well asmaximum hours to ensure workers on shift or on-call arrangements wereguaranteed a level of work. In January 1997 the AIRC approved anagreement at a WA Private hospital which sets no minimum hours fortheatre nurses (Workforce Issue 1105,28 February 1997:1,4 and AIRCPrint N7834, 6 January 1997). Outworkers pay rates are included underthe 20 allowable award conditions but the protection this affords isambiguous. The federal Clothing Trades Award clause specifyingoutworkers receive the same wage rates and hour limits as factory-basedworkers 'survived' but two other clauses giving effect to this (byrequiring registration of outworkers, work records and union access toinformation) were referred to a full-bench hearing in December 1998.


Some employer associations like the Australian Hotels Association(AHA) and the Australian Chamber of Commerce and Industry (ACCI)were quick to adopt an aggressive approach to stripping back awards.The AIRC has not proved to be entirely acquiescent. In March 1998 afull bench of the Commission rejected an AHA attempt to slash holidaypenalty rates in the hotel industry (Workforce NoIIS7 3 April 1998:3 andAIRC Print P9677, 23 March 1998). The Commission faces a number ofdilemmas in terms of the severe consequences of award stripping forsome groups of workers as well as a recognition that facilitating theprocess will only hasten its own demise. In NSW an activist commissioncontributed to the failure of that state's experiment with enterprisebargaining (O'Donnell and Pragnell, 1997). However, a similar outcomein the federal sphere is unlikely. The award simplification process isgaining momentum, egged on by a government prepared to intervene inaward outcomes it believed have not gone far enough. Additional awardsimplification has been flagged by Minister Reith as a key pall of thegovemment's post 1998 election reform agenda (Workforce Issue 1186,30 October 1998:4)..

Overall, the likely result of these changes is a system that is bifurcated intenns of the scope of collective negotiation and in tenns of a wideningremuneration gap even within the same industry. There is evidence thishad already begun to occur as a result of changes under Labor. A studyof the construction industry by Burgess el of (1997) found that a dualworkforce was emerging that could be measured in terms of conditions,ovenime, earnings and non-wage benefits. The majority of workers whoremained dependent on awards were falling progressively funher behindthe wage gains obtained by those covered by enterprise agreements. TheACTU's recent concern for the low paid represents a belated recognitionof the implications of policies which its current leadership helped toinitiate.

There is also evidence that the enterprise bargaining process isundermining award protection. Under Labor, the post-1988 frameworkpermitted trading off of award conditions (usually in return for a wageincrease) subject to a no (net) disadvantage test administered by theAIRC. In practice, the protection afforded by the test proved less thancomplete. It took time for the AIRC to develop appropriate guidelines


and there was less scope for it to intervene than under the public interesttest of the previous system. Further, implementation of the test was by nomeans vigorous. Where some groups within an enterprise gained butothers lost out (e.g. women, casuals) the parties to the agreement had avested interest in not identifying this to the AlRC. By agreeing to wageoutcomes which advantaged full-timers over casual/part-time staff, someunions risked encouraging a shift to the very workers they found mostdifficult to recruit (recent ABS earnings surveys reveal.a widening wagegap between full-time and casual/part-time workers: Worliforce Issue1102, 7 February 1997). Despite requirements to adhere to AntiDiscrimination legislation, some bargaining outcomes disadvantagedwomen (Bennett, 1994b:200 and Foster, 1995:96-7). It also becameapparent that basic award conditions like sick leave were being traded offnot only in EFAs (for a less than commensurate wage increase in the caseof Tweed Valley Fruit Processors) but also in union negotiatedagreements (Quinlan, 1996a: 12-3). Some problematic cases wereremedied but without a systematic review of all agreements it is almostcertain many others escaped detection.

Under the Workplace Relations Act the demonstrably inadequate nodisadvantage test protection was further weakened. For example, AIRCDeputy President Anne Harrison approved a non-union agreement(covering Chubb Security employees .at Darling Harbour) that cutovertime rates (to a 15% casual loading), required employees to work 7days without a break, and allowed accrued annual leave to be paid out,arguing that:

... it is possible that certification of an agreement may not.because of its content, be in the public interest but nonetheless itscertification may not be contrary to the public interest. Thisagreement provides such an example (AIRC Print 03596.161711998 cited in Workforcelssue 117117July 1998:6).

The most problematic situation relates to AWAs. By October 31 19973,350 AWAs had been approved by the OEA, 1,602 were still underconsideration, 127 had been rejected (several due to lack of genuineconsent) and 198 had been referred to the AIRC (Worliforce Issue 114114 November 1997:2). Problems with the revised no disadvantage testsoon became apparent. In September 1997 AIRC Deputy President

INDUSTRIAL RELAnONS POLICY 1977-1998 91

David Duncan found three agreements at one worksite failed the test'fairly comprehensively' by enabling employees to be rostered for workat any time, with no limit on hours and no entitlement to shift or overtimepenalties. Nevertheless, Duncan approved the AWAs because anexplanatory note in the legislation stated agreements could be approvedwhere they were part of a short-term survival strategy for a financiallystruggling finn (Sydney Morning Herald, 10 October 1997). Duncanstated the one-year duration of the AWAs meant workers were notlocked into inferior conditions but how they would retrieve these losseswas not explained. Duncan appears to have extended these grounds evenfurther in approving AWAs covering 150 workers at a South Graftonabattoir that set a tally rate above the award (Workforce Issue 1187, 6November 1998:1&6 and AIRC Print Q7881, 23 October 1998). Unlikeawards, AWAs remain secret and are not open to public scrutiny or theintervention by interested parties that may flow from this.

While evidence is still limited it appears that, like the VEA experiment inQueensland, AWAs are associated with a deterioration of wages andworking conditions below pre-existing minimum standards. The AWAoption has been used as a threat to secure significant changes tocollective agreements (for a case involving a shoe store chain seeWorkforce Issue 1122, 4 July 1997). If experience under the last years ofLabor is any guide, even collective bargaining processes can entailtrading off basic conditions or discrimination, especially where workersare vulnerable (such as young casual workers in hospitality or migrantwomen cleaners) and union organisation is weak. The new regulatoryregime further increases the role ofmarket factors in the detennination ofminimum standards, something international evidence shows will resultin growing earnings inequality (Burgess et 011997:16).

Union Voice and Recourse to Arbitration

Changes to industrial relations laws are also having significantimplications for unions. The more decentralised system placed additionalchallenges on unions in terms of recruitment, bargaining and monitoringagreements across hundreds if not thousands of workplaces. It also posedchallenges to union survival. Declining union membership in Australia


since the early 1980s was the result of an array of factors, includingsectoral employment shifts, the growth of precarious employment andproblematic recruitment strategies (Peetz, 1995 and Griffm and Svenson,1996). Recent regulatory changes have made union recruitment evenmore difficult. In New Zealand the introduction of similar measuresunder the Employment Contracts Act was followed by a significant dropin union density and the collapse of some unions (Bray and Walsh,1998).

Once again, in Australia these problems began under Labor and werecompounded by the Workplace Relations Act. Prior to 1993 enterprisebargaining was fumly linked to unions although the option of singleunion site agreements introduced in 1988 increased the scope forunproductive fenns of inter-union competition based on lowest commondenominator conditions and employer preferences. While some unions,like the Australian Workers' Union (AWU) benefited from this, thestruggle expended scarce union resources and arguably alienated somegroups of workers, setting the scene for de-unionisation campaigns. Theunion-free enterprise bargaining stream of EFAs established in 1993marked a dramatic break with 80 years of industrial relations policy.Ostensibly aimed at facilitating enterprise bargaining in the nonunionised sector, the ACTU soon complained it was being used byemployers to de-unionise workplaces. EFAs were initially limited tosmall firms but unions were alarmed at the potential for the practice tospread. They also feared the legitimacy the change leant to growingattempts by some large employers, such as eRA, Optus and Toys R Us,to avoid union representation using a variety of devices includingindividual contracts (Quinlan, I996a: 14-18 and 1996b:98-99).

The Workplace Relations Act compounded these problems by makingnon-union agreements a central not residual option, curtailing unionentry and recruitment rights, weakening the unfair dismissal power (animportant recruitment issue), and inserting freedom of associationprovisions. Like the ill-fated Industrial Relations Bureau (IRE) of the1970s, the OEA is charged with 'protecting' workers from beingpressured to join unions. In May 1998 the Employment Advocate, AlanRowe, instituted proceedings in the AIRC to have preference provisionsremoved from over 1,000 certified agreements (Workforce Issue 1164,29

INDUSTRIAL RELATIONS POUCY 1977-1998 93

May 1998:4). By the beginning of the previous month the OEA hadreceived 234 freedom of association complaints and had initiated twoFederal Court actions (Workforce Issue 1162, 15 May 1998:6). TheOffice also used s 170NC anti coercion provisions to remove a blacklistimposed by the NSW CFMEU construction division on crane companiesrefusing to sign an enterprise agreement (Workforce Issue 1171, 11 July1998:3). These measures seem to be having some effect although theOEA, like the IRB before it, has not proved invulnerable. One of its firstattempts to investigate freedom of association" at a Sydney transportcompany led to protests not only from the Transport Workers Union butalso the NSW Attorney General because the workplace fell under statejurisdiction (Sydney Morning Herald, 14 February 1998:7).

New anti-union powers have been used by a number of employers to dealwith strategic and well-organised ·unions in key export industries. Whilethe laws have not guaranteed success, they have tipped the balance morefirmly in management's favour. This is illustrated by a number of recentdisputes. Rio Tinto, for 'example, turned its attention to the powerfulCFMEU, seeking to introduce individual contracts at the Hunter ValleyNo.1 mine and successfully opposing efforts to have the matter referredto arbitration. While a worker ballot decisively rejected AWAs the unionis fighting a desperate defensive action. Similarly, in Queensland mininggiant ARCO sacked the unionised workforce (CFMEU) at itsGordollstone mine and tried to replace them with workers hired underAWAs. Thus far the AIRC has blocked these attempts but the companyhas secured significant reductions in working conditions (WorliforceIssue 1177,28 August 1998:1). In April 1998 Patrick Stevedores, actingin collaboration with the National Farmers Federation (NFF), used areshuffling of its corporate legal personalities to try and replace itsunionised workforce (1400) with non-union workers supplied by theNFF. Large scale pickets, international boycotts and a complex web oflegal action followed which ultimately saw the Maritime Union ofAustralia (MUA) retain unionisation of the docks but at the cost ofaccepting substantial job losses and changes to work practices. Thedispute also marked the growing subordination oflabour law to corporatelaw which is of itself tilting the battle more firmly against unions(Glasbeek, 1998). Notably, in these cases the federal governmentadopted an overtly partisan stance, egging on the employers involved,


arguing against AIRC intervention, and criticising companies who daredto advocate a more collaborative approach to unions.

The Rio Tinto, ARCO and maritime disputes represent extreme cases butless publicised attempts to bypass unions have occurred in retailing,railways, the public sector and footwear/clothing (Workforce, No.1139,31 October 1997:1; 1141, 14 November 1997:1; 1145, 12 December1997:2; and 1155, 6 March 1998:1). The new legislation also makes itmuch harder for unions to establish a presence in the workplaces. Astudy of bargaining in non-union firms (Camp1ing, 1998) foundemployers were using the legislation to marginalise worker and unioninput in the determination ofemployment conditions.

The non-union stream of agreements is small but growing. In March1998 only 3.5% of certified agreements were non-union with a further5,000 workers under AWAs (Workforce, No.1I53, 6 March 1998:2). Inthe year to July 1998 21,304 AWAs were approved, with 53% beingpublic sector employees - a clear indication of the federal government'sdetermination to promote this type of arrangement (Workforce Iss\ie1187, 6 November 1998:2). Further evidence of the government'sdetermination to push the non-collective stream can be found in therespective budgets of the OEA and AIRC. The 1998-9 budget allocationof the OEA was $13.476 million and 100 staff to athninister AWAswhile the AIRC had a budget of $39.982 million and 290 staffathninistering awards and agreements covering 2.8 million workers(Workforce Issue 1170, 10 July 1998:4 and 1171, 17 July 1998:3).

There are other symptoms of the problems the Workplace Relations Actposes for unions. Threatened and actual proceedings against unions usingthe Trade Practices Act appear to be on the rise. Further, the firstinstances of fragmentation and beak-away unions have occurred, mostlyin predictable areas. In February 1997 a staff association, formed amidstthe introduction of YEAs in Queensland's Metway Bank during the1980s, announced plans to register as an enterprise union covering themerged Suncorp-Metway-QIDC Bank. Six months later 300 workers atthe ICI (now Orica) Botany plant resigned from the AWU and formedtheir own enterprise union, the leI Botany Employees Association(Sydney Morning Herald, 27 September 1997; Workforce No.1I43, 28November 1997:1). In October 1997 a union was established to challenge


the construction division of the CFMEU, and in December the AnsettPilots Association became the first of the new enterprise unions to beregistered. (Worliforce, Issue 1138, 24 October 1997:1 and.ll44 5December 1997:2). While resistance to these moves by existing unionshas not been without effect (the battle to register the Orica union was stillbefore the AIRC in November 1998: Worliforce Issue 1189, 20November 1998:4) it has consumed union resources that might have beenspent elsewhere.

Inter-union competition also appears to be on the rise. For the federalgovernment, one perverse outcome of this is that militant and betterorganised unions may spread their influence. The CFMEU, for example,is posing a serious challenge to AWU representation of workers inmetalliferous mining/smelting, civil construction, engineering and labourhire (Worliforce, No.1115, 16 May 1997:1; 1154, 13 March 1998:1&31184, 16 October 1998:1&6; Industrial Relations and ManagementLetter, 14(8), September 1997). From a union perspective any gains fromincreased inter-union competition need to be balanced against thelogistical limits of small enterprise unions and the scarce resourcesexpended fighting over existing union members rather than attractingnew union recruits (especially those in precarious forms of employment).Finally, the Act strengthens the ability of employers to resist unionattempts to cover contractors and thereby address the threat posed bythese types of arrangement (see a case involving the Ausu·alian CollieryStaff Association, Worliforce Issue 1103, 14 February 1997).

The diminished role of unions raises important public policy issues,including their contribution to informed debate, their role in enforcingminimum employment standards, and the representation of otherwisepowerless groups in the community. In the reform debate these issuehave seldom been acknowledged let alone considered (for an exceptionsee SERC, 1996). There are already cases demonstrating that basicquestions need to be asked about due process and meaningful bargainingwhere contracts are individual, secret or non-union. These includeinstances where workers have only belatedly recognised problems posedby giving management an unfettered power to redeploy staff or alter shiftarrangements (see for example, Worliforce Issue 1161,8 May 1998:3 and1172, 24 July 1998:6). As non-unionised individuals, the great majority


of workers are in a weak bargaining position relative to their employer.In practice, what is tenned bargaining may amount to little more thanacceptance or rejection of a contract drawn up by the employer (oftenaided by a consultant). A recent survey found a strong associationbetween non-union agreements and inferior work-time arrangements(longer hours, averaging of hours and single-rate overtime (ADAMNo.151997:4)).

Employer intimidation of employees is also more likely. In a recent statecase a supennarket manager was fmed for intimidating two youngemployees into signing a Western Australian workplace agreement (CCHEnterprise Bargaining Update Newsletter No.18A, 30 June 1997).Reported cases represent the tip of an iceberg. Although the federal Actrequires the Employment Advocate to assure there is employeeconsensus with AWAs, this is unlikely to offset worker fears ofretribution. Problems of workers being pressured by short response times(of one day rather than the 14 days required under s170LK[8]) have alsooccurred with regard to non-union enterprise agreements monitored bythe AIRC (see Workforce No.1152, 27 February 1998:3 and 1157, 3April 1998:3). Unions like the Transport Workers' Union have soughtsecret IRC-run ballots for all non-union EAs in an effort to counterintimidation (Workforce No.I139, 31 October 1997:1). Those working ascleaners, shop assistants or nurses/nursing aides in private nursing homesare most likely to find themselves shifted onto individual or non-unioncontracts. This occurred in New Zealand under the EmploymentContracts Act where Hammond and Harbridge (1995) found a growinggender disparity in earnings, with men having far more success retainingunions and multi-employer collective agreements.

Enforcement is another critical issue. It is much easier for unions thanindividual workers to enforce legal entitlements. Casual/part-timeworkers, outvv'orkers, teleworkers, hairdressers and women in smallbusiness were already vulnerable under the award system, especiallygiven the unenthusiastic enforcement policies of federal governmentsover the past decade or more (Bennett, 1994a; Mayhew and Quinlan,1998). A recent survey of 100 clothing outworkers found that not onereceived even half the minimum award rate to which they were entitled(Mayhew and Quinlan, 1998). In a number of industries. such as


building, clothing and road transport, unions (rather than governmentinspectors) have done the bulk of enforcement, utilising their relativelyunfettered entry rights and the public nature of awards. Restrictions onunion entry, and a myriad of employment agreements not open to publicscrutiny, are liable to increase evasion of minimum employmentstandards. Workers making complaints risk dismissal. Others may bedismissed to remove evidence of illegal employment practices if a uniondoes get access to an employer's time and wage records (See for exampleAIRC Print Q6782, 23 September 1998). It is worth noting that workersdismissed for this and other reasons have little real prospect ofreinstatement. Despite ongoing government criticism of the unfairdismissal provisions, it is revealing that the AIRC ordered reinstatementin only 17 of 774 termination cases heard in 1997-8 (compensation wasawarded in 403 cases, no order was made in 43, and 311 were dismissed:AIRC Annual Report cited in Worliforce Issue 1186,30 October 1998:2).

With regard to recourse to arbitration, the Workplace Relations Actrestricted the role of the AIRC in quite fundamental ways. The Actseverely restricted the matters for determination in awards, extended thegrounds upon which the AIRC could refrain from hearing a case, andmade it clear arbitraI powers were to be exercised as a last resort. TheOEA exercised powers previously handled by the Commission.Independent contractors lost their right to have their contracts reviewedby the AIRC and the categories of casual/probationary workers excludedfrom taking an action for unfair dismissal was extended. Theimplications of these changes are only starting to emerge. One effect hasbeen to curtail the Commission's capacity to intervene in major disputes.Reduced access to arbitration and awards is also likely to undermine theemployment conditions of workers lacking strategic bargaining power.For groups like clothing outworkers (see Mayhew and Quinlan, 1998)awards represent the only viable form of regulation, but one dependanton union involvement (itself inhibited by recent legislation) andinspectoral activity (wound back in the last years of Labor and unlikelyto be revived under the Coalition).

98 JOURNAL OF AUSTRALIAN POLlTtCAL ECONOMY No 42

Gender Equity, Work Intensification and OccupationalHealth and Safety

There is growing evidence that changes to industrial relations laws areaffecting gender equity, hours/work effort and occupational health andsafety. Again, these trends emerged under Labor but there is reason tobelieve they will be reinforced under the Workplace Relations Act.

More decentralised systems devolve to a law of the strong and the weak.Workers lacking strategic bargaining power - including most women,those in small business, non Anglophone migrants and the young - willlose out while powerfully organised workers may do beller (at least inthe short term). In relation to gender there is clear evidence that thegender wage gap has been narrowest in countries with centralisedindustrial relations systems like Sweden (and until recently Australia)and widest in countries with decentralised systems such as Japan and theUSA (Whitehouse, 1990). In New Zealand decentralisation brought withit a growing gender wage gap (Hammond and Harbidge, 1995).Similarly, the shift away from the arbitration/award system in Australiareversed the previously narrowing gender wage gap. Annual reviews ofenterprise bargaining undertaken by the federal Department of IndustrialRelations (1995:242-3 and 1996a: 157) in 1994-5 revealed that theaverage eamings of male workers was growing significantly faster thanthe corresponding figure for women. More recent surveys confum thetrend is continuing (Department of Workplace Relations, 1998). Unlessreversed, the result will be a significant widening of the gender pay gap.

The issue is not simply one of equal pay. Bennet! (1994b) cites exampleswhere change to penalty rates, working hours, shift arrangements andother conditions in enterprise agreements adversely affected women (seealso Charlesworth, 1997). A survey of state and federal enterpriseagreements in Queensland by Boreham et al (1996) found that, despiteLabor government rhetoric, enterprise bargaining did not contribute togender equity via childcare, EEO or special leave provisions. Othersurveys have reached similar conclusions (see ADAMNo.16 1998:4,30-8and Strachan and Burgess, 1998:336-43), supporting the contention thatthe spread of enterprise bargaining will actually reverse gains madeunder the abritral framework. A federal government survey of 11000


employees working under post-1993 enterprise agreements found thatworkers reporting a change in conditions were far more likely to reportadverse (rather than positive) shifts in terms of promotion prospects, jobsecurity, family/work balances and job satisfaction (Department ofIndustrial Relations, 1995:376). Similarly, a survey the following yearfound that over 40% of male and female employees were less satisfiedwith the work/family balance as a result of work intensification - threetimes the number who expressed a positive outcome (the residual wasunchanged. Department of Industrial Relations, I996a:325). Concernsthat circumstances would worsen under the Workplace Relations Actwere reinforced by evidence presented to the 1996 Senate inquirY (seealso Charlesworth, 1997 and Strachan'and Burgess, 1998).

Aside from differential bargaining strength, there are procedural featuresof enterprise bargaining which disadvantage women and other vulnerablegroups of workers. Under Labor the ACm-sponsored certifiedagreements procedure lacked the public scrutiny or AIRC control thatmoderated the behaviour of dominant interests and thereby facilitatedmore equitable outcomes (Bennett, 1994b:197). Bennett (1994b:205)argues that, where agreements are secret, discrimination and inequitiesare liable to flourish unchecked. As already noted, the WorkplaceRelations Act will also exacerbate enforcement problems and this willimpact most on already vulnerable groups of young, female orimmigrants workers in hospitality, retailing, cleaning and home-basedgarment making.

The new industrial relations framework is not gender-neutral. Reformsinitiated by Labor created a more inequitable and gender-biased regimethat has been considerably bolstered under the Workplace Relations Act.Conservative politicians and employer organisations have been silent onthe issue and until recently their silence was aided by an equally muteresponse from the ACTU leadership. The ACm and ALP took a stronggender equity stand during the 1996 Senate inquirY and have sincetargeted their attention to the manifest failings of the WorkplaceRelations Act. While understandable, in a policy sense the labourmovement needs to acknowledge that the rot began after 1988 when acabal of senior union officials and ALP politicians promoted. policies thatonly suited powerful and generally male-dominated unions.


Growing gender imbalances are not the only outcome of recent changesto Australian labour law. Mention has already been made of theassociation between enterprise bargaining and work intensification.Rather than being a vehicle for new productive forms of multi-skilledteam-based work, enterprise bargaining has entailed increasing the span

.of ordinary hours (e.g. 12 hours shifts), removing/reducing breaks orcall-back times, outsourcing!casualisation and the introduction ofincentive payment systems (ACIRRT, 1998:101-25). The secondAWIRS survey (Moorehead et ai, 1997) identified a significant increasein average (full-time) weekly working hours combined with higher levelsof unpaid overtime and moonlighting. A significant proportion· ofworkers also reported working harder (58%) and experiencing increasedstress (49%). (See AWIRS 95 data cited in ACIRRT, 1998:106).

In addition to their impact on work/family balances there is evidence thatthese changes effect occupational health and safety (OHS). A study byHeiler (1995) found enterprise bargaining led to a worsening of OHSstandards, including the introduction of hazardous work and shiftarrangements (Heiler, 1995). There is mounting evidence on the adverseOHS effects of outsourcing and casualisation (Mayhew and Quinlan,1997,1998 and Quinlan, 1999). The commodification of risk via hazardallowances/danger money has also re-emerged after AIRC attempts todiscourage this practice in the decade after 1975. While many enterpriseagreements refer to OHS (Department of Industrial Relations, 1996b:7),these provisions generally failed to address key health and safetyconcerns, including the use of contractors, workloads and the need to recalibrate hazardous substance exposure limits when adopting longershifts. OHS issues have been largely overlooked in the bargainingprocess and those most at risk, including non· Anglophone migrants andpart-time workers, are unlikely to be consulted about workplace change(Department of Industrial Relations, 1996a:280-82). Again, theseproblems emerged under Labor but have deteriorated under theWorkp/ace Relations Act. Awards can no longer be used to regulate workpractices (like casual/full-time ratios, staffing level requirements andshift breaks) with an OHS dimension. Diminished union input will alsomake it more difficult for workers to raise or resolve OHS complaints.


Conclusion

The legislative and policy initiatives of the Coalition government led byPrime Minister John Howard have the potential to mark a fundamentalshift in Australian industrial relations. After its re-election in October1998, the federal government mooted further changes to reinforce thosemade under the Workplace Relations Act, 1996. These include legislationpreserving junior wage rates, renewed efforts to exempt small businessfrom unfair dismissal claims (and further reducing access by extendingthe probationary period for new employees), tighter entry requirementsfor unions and new limits on industrial action (via cooling off periodsand secret ballots). Following its partial victory over the MUA, thefederal government has turned its attention to the meat industry and thetally system in particular (Workforce Issue 1185,23 October 1998:3 andIssue 1187, 6 November 1998:1). Further victories against otherpowerful unions such as the CFMEU would have long-term ramificationsfor the union movement as a whole.

This shift originated partly in a group committed to this agenda withinthe Liberal party (especially Howard); pressure from influential businessgroups (notably the BCA while the MTIA representing another fragmentof capital remained less enthusiastic); free-market think-tanks; as well aslegislative initiatives in the USA, UK and New Zealand. Morecontroversially perhaps, the foundations for the Howard reforms werealso laid during the last half of the previous Labor government with theactive involvement of senior ACTU officials, notably Bill Kelty. It isnow clear that Labor's amendments to the arbitration system widenedlabour market inequalities and were, from a labour movementperspective, a strategic error that must now be papered over to avoidembarrassing senior ACTU officials or fracturing the union movement.

Under both Labor and the Coalition the reform push relied heavily on thebenefits in terms of enhanced productivity and labour market flexibility,benefits more apparent in the rhetoric than the evidence. The majoraddition to reform rhetoric under the Howard government have beenreferences to individual choice and a down-playing of collective rights soimportant to Australia's model of arbitration. It is, in' essence, anideological agenda where the language of individual economic


exchanges overrides any recognition of fundamental power imbalancesin the employment relationship. The Workplace Relations Act, byrestricting the scope for arbitral tribunal or union involvement indetermining employment conditions, vests more control withmanagement. Prime Minister John Howard is also well aware that aweakened union movement will have important consequences for theALP.

Recent reforms to Australian industrial relations laws are beginning tohave significant socio-economic impacts on Australian society.Decentralisation of industrial relations under Labor had adverse effectson already vulnerable groups of workers, including most women andimmigrants. Though evidence is still fragmentary, it seems clear thatchanges under the Coalition are accentuating these trends by inhibitingunion-based bargaining, pushing more workers into individual or nonunion bargaining streams, reducing public scrutiny of outcomes andmaking enforcement more difficult. These effects will flow on to evenwell-organised and strategically placed unions. This occurred in theUSA, and recent maritime and mining disputes are harbingers of asimilar trend. Nevertheless, despite suggestions to the contrary, thisregime is neither inevitable nor as yet sufficie~t1y entrenched to prevent areversion to the arbitration model which, with all its faults, has arguablyserved Australian society far better.

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Documents

INDUSTRIAL RELATIONS POLICY A CRITICAL REVIEW Michael … · 2020. 5. 1. · INDUSTRIAL RELATIONS POLICY 1977-1998 77 First, interlocutory injunctions and damages claims under common