Good faith clauses not enough: McCallum

Analysis

Good faith clauses not enough: McCallum

The Gallop Govt in WA had a 'golden opportunity' as it was introducing its new industrial legislation to also bring in a statutory union recognition procedure, Australia's leading industrial lawyer told a Sydney conference yesterday.

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The Gallop Govt in WA had a 'golden opportunity' as it was introducing its new industrial legislation to also bring in a statutory union recognition procedure, Australia's leading industrial lawyer told a Sydney conference yesterday.

Sydney University's industrial law professor Ron McCallum told delegates to ACIRRT's 10th annual labour law conference that he foresaw another six years of a Howard federal Government, and for WA and other Labor states not to act on such clauses now would be to waste precious time.

McCallum, who has recently returned from a six-month stint in Canada, said good faith bargaining provisions contained in Gallop's Labour Relations Reform Bill 2002 (see 47/2002) would do nothing unless unions were formally recognised in legislation.

He said NSW should also be considering the matter as it started its review of that state's 1996 Industrial Relations Act. McCallum was the man behind drawing up the NSW and Queensland IR Acts, and was chairman of the Victorian IR Taskforce appointed by the Bracks Government.

Referring to the broad good faith provisions contained in the Gallop laws, and to the promises of former federal Opposition Leader Kim Beazley to introduce a similar concept federally (see 25/2000), McCallum said there seemed to be a view abroad in the union movement and within the ALP that 'if only we had good faith powers it'd level the [industrial] playing field'.

'Nothing could be further from the truth,' he said. 'What's needed are statutory trade union bargaining procedures.' He said both Keating Labor Government and current Howard Government laws had failed to grapple with the issue. Keating in particular had ignored the prospect of 'recalcitrant employers' refusing to bargain fairly with trade unions who had coverage over workers.

Referring to last year's BHP Iron Ore decision (see 4/2001), which allowed the company to continue offering individual contracts to its workers in the Pilbara, McCallum said that no legal means existed in federal law, or in any of the states apart from NSW, forcing employers to bargain with trade unions.

In the BHP decision, Federal Court Justice Susan Kenny found that offering workers more money if they signed individual contracts was not an inducement to leave the union.

With collective bargaining and unionism 'predominantly a private sector phenomenon', McCallum said it was important that Australia's voluntary bargaining laws be altered to enable employees to exercise the right to be represented by trade unions in collective bargaining, 'to ensure the maintenance and growth of collective bargaining by trade unions'.

McCallum pointed out that as the law now stands, 'even where the overwhelming majority of a workforce desires to be represented by a trade union in collective bargaining, no legal mechanism exists under federal labour law where the employees can enforce this outcome'. This was contrary to International Labour Organisation conventions on the right to organise and collective bargaining.

He said the voluntary bargaining laws in the federal Workplace Relations Act failed to uphold freedom of association and the effective recognition of the right to collective bargaining because no mechanisms exist to require employers to recognise and to bargain in good faith with trade unions.

McCallum said it seemed clear the Tony Blair model introduced into the United Kingdom was the one Australia should be using, possibly with some reference to the New Zealand model. These models would fit with the existing industrial framework, unlike the 'rigid' North American example.

In the UK case, the legislation promotes voluntary recognition of one or more trade unions by an employer, and where this is not achieved a Central Arbitration Committee can help the parties agree or grant recognition.

Under the NZ model, the government promotes collective bargaining by requiring employers to bargain in good faith with registered trade unions.

'We live in dark days,' he said. 'What is needed is to think new ways, think new thoughts, come to the coal face with a new will. Now is the time for policy experimentation, for new tools.'

 

 

 
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