New laws will encourage demarcation disputes: employers


New laws will encourage demarcation disputes: employers

Two major employer groups are making strong complaints to the Federal Government that changes to right-of-entry provisions in the new IR laws will encourage demarcation disputes between unions.


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Two major employer groups are making strong complaints to the Federal Government that changes to right-of-entry provisions in the new IR laws will encourage demarcation disputes between unions.
Master Builders Australia Inc (Master Builders) and the Australian Mines and Metals Association (AMMA) claim that the change of right-of-entry provisions from historical award coverage to union eligibility rules will cause an overlap of union representation.
In their submission to the Department of Education, Employment and Workplace Relations (DEWR) on union representation rights under the Fair Work Bill, the two employer groups say this would increase the likelihood of ‘union turf wars and demarcation disputes’.
Change from award to eligibility rights
They blame this on a change in how union right-of-entry rights are decided under the new legislation.
The submission says there has been a longstanding requirement (since 1973) for a union to be bound by an award or certified agreement as a condition for workplace access.
It says the various manifestations of the Workplace Relations Act were consistent with this approach to union rights of entry.
However under the Fair Work Bill (the Bill), union representation rights will be governed by a requirement that the union is eligible to represent the industrial interests of relevant employees in accordance with its eligibility rules.
Need certainty
The submission says that, consequently, it is desirable that employers, employees and unions are certain of the circumstances under which a union meets the test of being eligible to represent the interests of the relevant employees.
It says that after this change employers will need certainty as to whether the union seeking right of entry is entitled to do so.
‘The reliance on union eligibility rules, without regard to historical award coverage or agreement coverage, will result in a significant increase in overlap of union representation and thus increase the likelihood of union turf wars and demarcation disputes,’ the submission says.
Exacerbated by modern awards
‘This factor will be exacerbated by the creation of modern awards. Modern awards will merge industries and occupations and therefore disturb existing coverage arrangements.’
The submission gives specific examples of potential problems caused by the new approach to union right of entry:
  • A union that could not obtain a majority representation order (perhaps at the expense of a competing union) could seek right of entry to undermine the approach of the competing union.
  • A union that was not a party to a pre-Fair Work Act agreement could seek right of entry in order to obtain a dominant position and compete with pre-existing union parties.
  • A union that had coverage but had not exercised it in the industry for a considerable period (perhaps because of another union’s presence) could decide to become active and commence a recruitment campaign resulting in a major dispute between competing unions.
  • A union seeks right of entry to undermine a prior decision by employees to appoint another union to bargain or to challenge a decision not to appoint any union.
‘Representation orders’ will bar unions from coverage
A spokeswoman for IR Minister Julia Gillard said that ‘representation orders’ that prevent a union from representing employees in a particular business or industry will be available under the new system.
However, employers are known to be concerned that such orders would have to be sought after the demarcation dispute had erupted.
Demarcation problems worse for employer bodies
WorkplaceInfo IR consultant Paul Munro comments:
The issue of union demarcation under right of entry laws also raises similar issues in relation to employer organisation representation before FWA, particularly any future matters involving the review and variation of modern awards.
The chance of demarcation problems occurring between employer associations is higher because there are more than 300 registered employer organisations in Australia (both federal and state registered) with many of the larger associations having an across-the-board coverage of membership or industry representation.
Advertising tool for memberships
Awards have traditionally been used by employer associations as an advertising tool to highlight the virtues of membership of that association. It was common for an industry employer association to refer to an award as 'our' award.
The number of employer associations wanting to represent the industrial interests of their membership with respect to some proposed modern awards (for example, the award that will cover clerical employees in the private sector) could number several hundred.
Determining employer representation in proceedings involving this modern award has the potential to create greater demarcation problems than matters involving union demarcation disputes.
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