Can your work choices include opting out of  WorkChoices?

Analysis

Can your work choices include opting out of WorkChoices?

A Charter of Employment Rights, based on the principle that good employment relationships are based on equality, including equality of bargaining power, was raised as an alternative to using the federal WorkChoices legislation in a presentation to the 2006 Australian Human Resources Institute (AHRI) National Convention in Melbourne on 25 May 2006.

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A Charter of Employment Rights, based on the principle that good employment relationships are based on equality, including equality of bargaining power, was raised as an alternative to using the federal WorkChoices legislation in a presentation to the 2006 Australian Human Resources Institute (AHRI) National Convention in Melbourne on 25 May 2006.

Mordy Bromberg, SC and Head of the recently-formed Australian Institute of Employment Rights (AIER), argued that the WorkChoices legislation is unfair because it has created bargaining inequality for employees.

The AIER is promoting the development of a charter of employment rights to offer as a model for employers and employees who prefer to opt out of coverage by the options under WorkChoices.

Why consider opting out?

Bromberg outlined the duties and rights of employers and employees in employment relationships. He distinguished between substantive and facilitative rights. The latter provide processes to achieve the substantive rights. He noted that employers' facilitative rights are guaranteed by common law (such as the right to dismiss employees), but employees' rights are not, and must therefore either be included in a contract or covered by legislation.

Unfairness

Under WorkChoices, the Australian Fair Pay and Conditions Standard (AFPCS) minimum entitlements may act as a protection against major exploitation of employees, but are too basic to protect them against unfairness. As employees are generally worse off in terms of negotiating skills and access to resources and information, they do not usually have equal bargaining power as individuals.

Collective rights marginalised

Pre-WorkChoices, legislation provided for collective arrangements that could overcome that imbalance, but the collective arrangements have now been marginalised by restrictions on rights such as freedom of association, right of entry, limited right to strike, right to organise, recognition in bargaining and good faith bargaining. Those rights are covered by ILO Conventions.

For example, Australian Workplace Agreements take precedence over all forms of collective working arrangements, and AWAs can be offered to new employees even where existing employees are covered by a collective agreement. Because AWAs expire on different dates (eg the employee's anniversary of service), this undermines the possibility of replacement by a collective agreement later on and ultimately collective bargaining at that workplace will be unviable.

Higher productivity?

Bromberg claimed that the philosophy behind WorkChoices is that lower pay will lead to increased productivity and therefore increased competitiveness. He called this 'the low road to higher productivity'. He noted that countries such as Finland are considered to have very competitive workforces but retain a high level of employment protection rights.

Equality

He argued that the best relationships are based on equality between the parties, and that this will lead to a 'win-win' approach. Employees prefer to work for fair employers and are more likely to stay with them. There is evidence that investors and customers now place greater scrutiny on companies' employment practices and that this will influence their decisions on where to allocate their funds and business. In the longer term, inequality will harm productivity for these reasons.

What AIER is doing about it

AIER was recently established as a think-tank to promote alternatives to the options provided by WorkChoices. It is an independent and tripartite body and is currently developing a contractual framework for an alternative employment relationship model that will not conflict legally with WorkChoices. One product of its work will be a charter of employment rights.

AIER currently operates within the Faculty of Business and Economics at Monash University, Melbourne.

Further information

Further information about the AIER's activities, or membership enquiries, is available here.

Further information about the Convention is available from the AHRI website here.

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