Current law 'opens way' for employee representation models

Analysis

Current law 'opens way' for employee representation models

In the face of clear evidence that worker representation was good for business, employers should think about supporting legislation requiring the establishment of works councils or similar mechanisms, a London School of Economics academic told a Sydney conference on Friday.

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In the face of clear evidence that worker representation was good for business, employers should think about supporting legislation requiring the establishment of works councils or similar mechanisms, a London School of Economics academic told a Sydney conference on Friday.

Paul Gollan, addressing ACIRRT's Models for Consultation conference, echoed points raised earlier by AIRC Vice-President Iain Ross that the demise of unions had left gaps in representation when it came to 'employee voice' (see 370/2002). He outlined numerous pieces of research showing the benefits to a workplace where employees felt they could be heard - not only in terms of morale and trust, but also productivity and output.

Gollan admitted that legislation supporting such mechanisms was unlikely to attract support in Australia 'in the present legal and political environment'. He also raised concerns that mandating such arrangements would impose a 'one size fits all' approach that could result in only tokenistic change, which would contribute nothing to real improvement.

But he said some current legislation - for example the requirement to consult with employees under the NSW OHS Act 2000 (see 7/2000) - could be amended to promote and encourage the introduction of works committees or works councils.

Rather than dealing with a narrow range of issues, these OHS committees could have their scope and agenda expanded to more effectively achieve their aims by letting them debate a range of issues, currently excluded from such talks, Gollan said.

'In particular, issues concerning hours of work, control over work, the desirability of particular reward and remuneration mechanisms, the level and quality of general training and skill requirements, and knowledge and competence required for the effective performance of particular jobs could become part of their mandate,' he said.

Widening the scope in this way would also provide a way for management to involve and inform an employee of their responsibilities.

Federal openings

The federal Workplace Relations Act 1996 provided another avenue for legal introduction of such measures, he said, especially s170GA, dealing with the requirement for employers to consult with trade unions about redundancy, and s170LK, governing the certification of an agreement between an employer and employees.

Both these provisions could be amended to provide for works committees to be included either where a union was not present, as in the first instance, or to allow the works committee to become a party to an agreement in the second case.

Gollan, who has previously produced a paper for the Office of the Employment Advocate outlining findings that Australian Workplace Agreements were more successfully implemented where there was collective participation in their introduction (see 134/2000), said AWA provisions in the Act could likewise be modified.

So too could the freedom of association provisions under the Act, he said, to provide legal protection for employee representatives.

Given the political situation, Gollan suggested a voluntary form of legislative change, in the first instance, under which employers who agreed to establish and use such provisions could be subject to less regulation if adequate safeguards had been put in place.

And he said while legislation could be seen as a weapon, purely to attack unions further, it could also be 'a road-map for the future'.

The constitution

Other speakers at the conference also addressed legislative possibilities.

University of Sydney Dean of Law Professor Ron McCallum advocated that an 'innovative government' could allow and encourage broader representation by using constitutional law to give employees, disenfranchised through lack of union representation, the right to participate in workplace rule-making.

He said he thought an attempt by former Democrat Senator John Siddons, via his Industrial Democracy Bill, to use the taxation powers available under s51(2) of the Constitution to give a tax break to employers who set up a consultative mechanism, a 'very good idea'.

He also lauded the NSW OHS Act, and said training was a must to go side by side with consultation.

Labor's view... and the OEA

Shadow Federal IR spokesperson Robert McClelland told delegates the NSW OHS legislation was 'clearly an embryonic form of workplace democracy' and that he felt the AIRC would be in the best position to 'set down some markers'.

And Federal Employment Advocate Jonathan Hamberger said he agreed there was ample evidence employee consultation was good for employees and the business but added that despite his personal views, he felt employer resistance would mean mandated consultative mechanisms would be unlikely.

He too saw the OHS legislation as a starting point and warned against seeing any legislation on representation as a way of hastening the demise of unions, saying such a move would lead to tokenism and 'token consultation is worse than none'.

 
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