‘Dump arbitration from IR laws’, ACCI tells Govt


‘Dump arbitration from IR laws’, ACCI tells Govt

The Australian Chamber of Commerce and Industry (ACCI) wants the Fair Work Australia legislation amended so that there are no powers of arbitration in the Federal IR system.


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The Australian Chamber of Commerce and Industry (ACCI) wants the Fair Work Australia legislation amended so that there are no powers of arbitration in the Federal IR system.
In its submission to the Senate Inquiry, ACCI says ‘employers do not accept that the system should throw its hands in the air when bargaining becomes difficult and resort to crudely imposing outcomes where there is some robustness in negotiations’.
The legislation currently before the Senate says that where good faith bargaining orders are breached, a union can apply using this avenue for arbitration of its claims.
Economic harm
Another form of arbitration is triggered when employers or employees are facing economic harm as a result of industrial action.
‘Breaching good faith bargaining orders is not evidence of intractability or of such damaging and threatening outcomes that the ultimate measure of arbitrating should be activated and entirely displace bargaining,’ the submission says.
‘There is also no evidence that resorting to arbitration at this point will lead to better outcomes than (a) continuing to make and enforce good faith bargaining orders, or (b) providing an escalating option of harsher or more demanding orders.’
Union exploitation’
ACCI says employers are very concerned that this will become one of the vulnerable fault points in the system which unions will strategically exploit for the reward of arbitration.
‘Employers are also concerned that this will encourage calculated behaviour, not towards a genuinely bargained agreement, but in pursuit of the reward of arbitration,’ ACCI says.
‘Unions may for example seek to load up so many complex good faith bargaining orders and obligations that an employer is set up to fail and the union can secure arbitrated outcomes.’
ACCI argues that there should be no bargaining related workplace determinations, and above award arbitration remain available only in genuinely exceptional circumstances as set out in the current Workplace Relations Act 1996.
Ministerial authorisation required?
If this is not accepted by the Government, ACCI wants:
(a) an additional requirement requiring that FWA be satisfied that there is no realistic prospect of an agreement being reached in further negotiations, including through the use of the full range of orders and interventions under the Act, prior to arbitration becoming an available option.
(b) Ministerial authorisation obtained for before FWA has jurisdiction to conduct any form of arbitration.
 ‘There also needs to be discretion in the making of such orders (if they are to become part of the system) and FWA needs to be directed to take all actions to deliver a negotiated rather than imposed outcome,’ ACCI says.
‘For each of the forms of arbitration (workplace determination) FWA needs greater scope to extend periods for negotiated outcomes prior to arbitration. Arbitrated outcomes should only operate on a very limited period and subject to review.’
In its submission, ACCI also argues that unions should not be the automatic bargaining representative in collective agreements.
True desires of all parties
It says the concept of employee collective agreements and union collective agreements should be retained in order to reflect the true desire of employers, employees and unions in agreement making.
‘Unions should not have the right to be covered by an enterprise agreement unless a valid majority of employees who voted for the agreement are union members and the union was actually involved in bargaining,’ the submission says.
ACCI chief executive Peter Anderson called for significant moderation of the Rudd Government’s proposed industrial relations laws.
Amendments wanted
The amendments ACCI wants include:
  • scaling back the arbitration powers of the new centralised regulator
  • limiting the exposure of service industries to industry-wide union claims
  • not removing completely the unfair dismissal exemption for small business
  • limiting the potential for a new phenomenon of ‘go away bargaining money’ being paid by employers when confronted by union bargaining claims
  • ensuring new ‘modern awards’ do not increase business costs
  • placing fairer limits around union entry into workplaces and inspection of records
  • removing inflexibility in employment rules when business are sold
  • keeping limits on the right to strike by tighter limits on bargaining content
  • limiting scope for demarcation and employer dealings with multiple unions
  • commencement dates returned to 2010, as originally proposed.
ACCI’s submission proposes 204 amendments to the 575-page Bill, principally across 10 areas of greatest concern to business.
Gone too far
The ACCI submission also recognises that government has not adopted the full suite of proposals advocated by the union movement, and retained some employer protections in development of the Bill, which will be simpler to navigate than the current system.
‘However, the government proposals go too far, and it has not got the balance right,’ Anderson said.
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