Senate committee hands down report

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Senate committee hands down report

The Senate Economics References Committee last night (Thursday, 22 August) delivered its report into the federal Government’s Workplace Relations Bill 1996 -- a report which provides a great many words and few surprises.

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The Senate Economics References Committee last night (Thursday, 22 August) delivered its report into the federal Government’s Workplace Relations Bill 1996 -- a report which provides a great many words and few surprises.

In possibly the least surprising aspect of all, the 8 member Committee presented three reports: a majority report (written by the four Labor Senators); a minority report (written by the three Liberal Senators) and a supplementary report by the lone Democrat, Senator Andrew Murray (WA).

Senator Murray however agreed with much of the majority’s report (the points at which he disagreed are noted below) but provided a supplementary report in order to clarify the Democrats’ position. That supplementary report is canvassed below.

Today’s HR Link starts with a summary of the conclusions of the majority report.

Reforms to present industrial relations institutions

The Labor majority considered that the Bill (Workplace Relations Bill 1996) proposes to undermine the capacity of the present industrial relations system and its institutions to redress the imbalance in bargaining position between workers and their employers. The majority highlighted the following proposals as being of particular concern:

  • the manner in which the Bill allegedly restricts the capacity of unions and workers to opt out of a particular State system and access the federal award system (especially where the particular State system ‘is clearly and unambiguously deficient’), this was seen as an inappropriate restraint on the Commission’s powers;
  • the reduction in allowable award matters was considered to be fatally flawed, the majority argued that this provision will unequivocally reduce workers conditions and will breach the Prime Minister’s ‘rock solid guarantee’, this provision was also considered to be ‘arbitrary and deficient’;
  • the removal of superannuation from awards was of particular concern; and,
  • the abolition of paid rates awards was seen as leaving employees such as nurses, teachers and public servants worse off.

The proposal to permit arbitration only as a ‘last resort’ was considered likely to increase the cost and time involved with dispute proceedings.

The proposed abolition of the Commission’s power to set minimum and maximum part-time work hours was rejected.

The proposed removal of the current provisions which allow the Commission to make equal remuneration orders was rejected.

The proposals limiting the Commission’s power over industrial action while allowing the parties greater access to common law remedies were rejected.

The proposals establishing the Office of Employment Advocate were rejected. It was considered more appropriate for the Employment Advocate’s proposed functions to be divided between the Commission and the Department of Industrial Relations (Senator Murray disagreed with this concern).

The Industrial Relations Court should be maintained.

Enterprise bargaining reforms

The enterprise agreement proposals were criticised on a number of fronts:

  • the minimum conditions test for certified agreements and AWAs was considered to be inadequate and ‘could very well lead to many employees ... being worse off’;
  • the right to unilaterally terminate an agreement after its expiry date ‘will enable an employer to threaten their workforce with significant reductions to existing entitlements if they do not agree to proposals for a new agreement’;
  • the Bill should be amended to ‘ensure that there can be no discrimination against those who choose to bargain collectively’;
  • unions should not be totally excluded from the review of federal enterprise agreements, even where they are not parties (Senator Murray expressly disagreed with this recommendation);
  • there should be one stream of certified agreements only i.e. union certified agreements; and,
  • there should be independent review of AWAs before they come into force.
State enterprise agreements v federal awards

The proposals which would allow State enterprise agreements to override federal awards were considered to be undesirable.

Unfair dismissal reforms

The unfair dismissal provisions should not be exclusive to federal award employees but should be available to all Australian employees. The proposal to allow consideration to be made of the effect of a compensation order on the viability of the employer was rejected, as was the proposal to allow costs to be ordered in certain circumstances.

Right of entry proposals

The proposed amendments to the present right of entry provisions were rejected.

Training and apprenticeship

The proposed removal of the current Training Wage system were rejected. The proposed amendments to the present apprenticeship and trainee schemes were also rejected.

Independent contractors

The removal of the independent contractor provisions would be unfair.

Small business -- to benefit from legislation?

There is no evidence to support the view that small business will benefit from the proposed changes (Senator Murray disagreed with this conclusion).

Industrial organisations

The following proposed amendments to the provisions dealing with industrial organisations were rejected by the majority:

  • the ‘conveniently belong’ rule should not be abolished;
  • the enterprise union provisions will lead to a multiplicity of unions and will thus cause particular detriment to employers and to the community;
  • the provisions which will allow autonomous branches of federal unions should not proceed; and,
  • preference clause should be allowed where the parties agree or where the Commission determines such a clause to be appropriate (Senator Murray disagreed with this particular recommendation).

Note, however, that the majority actually agreed with the provisions which will facilitate the disamalgamation of the ‘super’ unions.

Secondary boycotts

The proposal to transfer the secondary boycott provisions out of the Industrial Relations Act 1988and back to the Trade Practices was rejected (Senator Murray was ‘sympathetic’ to the majority’s view on this point but disagreed).

Democrat view

Senator Murray chose not to deliver a minority report and endorsed many of the recommendations made by the majority. However, the Senator provided a supplementary report intended to clarify a number of the issues from the Democrat perspective. The following are some of the more noteworthy points arising out of the Senator’s supplementary report:

  • the proposed reductions in the Commission’s powers was a ‘key concern’;
  • the proposed reduction in award matters was disagreed with but the Senator expressed concern with the complexity of the present award system and the failure of the s150Aprovisions to deliver a more simplified and flexible award system;
  • the Senator disagreed with the wording of the provisions which would allow State enterprise agreements to override federal awards. The Senator, however, saw merit in the parties being able to choose a number of enterprise bargaining options provided there are adequate safety checks;
  • certified agreements should be available to non-union workplaces but the provisions for detecting whether the employees genuinely endorse the agreement must be tightened;
  • there is a need for new industrial instruments to deal with un-unionised workforces but the procedures for developing and approving such instruments must be rigorous and must adequately protect workers;
  • there is value in being able to make individual agreements (as per the AWA provisions), however, the legislation should promote collective agreements over individual agreements, but allow for individual agreements where the conditions under the agreement as a whole are superior to the award and the employee genuinely and freely agrees to the agreement;
  • AWAs should not be restricted to federal award workers;
  • there is no need to rewrite the present right of entry provisions;
  • the Office of Employment Advocate should be renamed Office of Employee Ombudsman and should carry out the DIR Awards Management Branch’s employee advisory and prosecuting functions, along with the proposed employee protection sections of the Office of Employment Advocate;
  • support for the basic thrust of the Government’s unfair dismissal reforms -- ‘the test of whether an employee is re-instated should be whether the employee can prove that the dismissal was harsh, unjust or unreasonable’; and,
  • secondary boycotts should first be dealt with by the Commission, but where the union openly defies a Commission order or recommendation then the employer should be able to access legal sanctions to resolve the dispute.
Comment

It is clear that there is very little in the Workplace Relations Bill 1996 that the majority Labor Senators agreed with. Unfortunately, little use seems to have been made of the opportunity to put forward constructive recommendations. This is especially disappointing in light of the effort many individuals and organisations put into preparing their submissions.

The federal Minister for Industrial Relations, Peter Reith, was quick to criticise the majority’s report on a number of grounds including the fact that the Labor Senators who constituted the Committee’s majority have at least 55 years of union membership or employment between them.

On the other hand, the Minister was not displeased with a number of the points put forward by the Democrats:

"I think a lot of the things Senator Murray says are perfectly reasonable and provide the basis for sensible ongoing discussions that we’ve already commenced with them, but which will obviously intensify in the next few weeks prior to the Senate’s resumption of the debate on this Bill in mid-September."

The Minister later highlighted exactly where the discussions between the Government and the Democrats are presently at:

"In terms of the further progress of the Bill, we have an agreement as to process with the Democrats for the further consideration of the various issues that they have raised."

But there remain two key questions:

  • first, because Senator Kernot has carriage of the industrial relations debate through the Senate, the key question is how much does Senator Murray’s report reflect Senator Kernot’s views and priorities; and,
  • second, what effect will Senator Colston’s resignation from the Labor ranks have on the debate?

The total Senate Committee report is very large. It is therefore not possible for the Chamber to provide interested subscribers with a copy. However, subscribers can access the full report via the internet, the address is:

http://economic@senate.aph.gov.au/committee/economics_ctte/workplace/contents.htm

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