Senate committee reports on second wave of reforms

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Senate committee reports on second wave of reforms

On 29 November 1999, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee tabled in the Parliament the Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999.

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On 29 November 1999, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee tabled in the Parliament the Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999. The Committee received over 500 submissions and produced a 400 page report which was largely divided along party lines.

Whilst the Government majority on the Committee commended the Bill unchanged to the Senate, not surprisingly the Labor members of the Committee recommended that the Bill in its entirety be withdrawn. The Democrat Senator's Report therefore provided the most interest and provided the most reliable indication to date as to the fate of the Government's second wave of Workplace Relations reform. Although, it must be remembered that ultimately, the Democrat party room will determine the final position.

From the outset of their report, the Democrats made it clear that a strong or compelling case had not been made out for major reform to the Workplace Relations Act 1996. Insisting upon 170 amendments during the passage of that Act in 1996, the Democrats believe that that those reforms are not fully bedded down. The process of award simplification that is only half completed is alluded to as an example of how it is too soon for major changes. According to the Democrats the Bill, "as it stands is too harsh, too regressive and too unfair to attract our support in its current form".

The overall conclusion was that the major provisions of the Bill should be rejected as harsh, unfair, unbalanced and unnecessary. Of the schedules that were acceptable in part to the Democrats, most would need substantial amendment and modification to form what the Democrats would consider the basis of good law.

An overview of the Democrat position on most of the schedules is provided below.

Schedule 1 - Objects of the Workplace Relations Act 1996

The Democrat Report was noticeable in its brevity on this point. Generally, Senator Murray was of the opinion that the proposed amendments to the objects of the Act would detrimentally alter the direction of the Workplace Relations Act.

Schedule 2 - Renaming the AIRC and restructuring the Commission

As with the Labor Senators, the Democrats opposed the amendment to introduce fixed term appointments to the Commission as this would undermine and compromise the independence of the Commission.

Schedule 4 - Conciliation

In line with key submissions the Democrat position was that the existing system of conciliation is accessible, uncomplicated and widely supported by experienced practitioners of industrial relations. To this end, the conciliation provisions of the Act did not need to be amended.

Schedule 5 - Mediation

The Democrat report opposed the setting up of a mediation regime that would be an alternative to the Australian Industrial Relations Commission. Rather the Democrat report advocated that mediation be built into the existing system.

Schedule 6 - Awards

According to the Democrat report this schedule, "is one of the least attractive schedules in the Bill". In the Democrat's opinion the schedule has the effect of watering down the award safety net at a time when award simplification is only half complete.

Schedule 7 - Termination of Employment

The Democrat report acknowledged that problems still exist in relation to the time, costs and processes of the unfair dismissal provisions. The provisions related to limiting the scope of constructive dismissals are rejected completely by the Democrats. However, amendments to procedural problems with the conciliation phase of unfair dismissals, were held by the Democrats to go too far and would need significant amendments.

Schedule 8 - Certified Agreements

Although supporting a few technical amendments, and identifying a number of clauses that could be considered if amended, the Democrats considered it better to oppose this Schedule altogether, than attempt to gut it.

Schedule 9 - AWAs

The Democrats considered the major changes proposed in relation to AWAs to be regressive in that they seek to reduce the scrutiny of AWAs by the Employment Advocate and the Commission. To this end, Senator Murray recommended opposing this Schedule.

Schedule 11 - Industrial Action

The Democrat report held it to be difficult to advocate a tightening up of this area, when Australia is simultaneously boasting that it has the lowest level of industrial disputation in eighty years.

The Democrats claimed that the Government had failed to make out a case that s127was not working and required reform. Nor did the Government make out a case for extending the notice period for industrial action from 3 to 5 days, or for broadening the definition of prohibited strike pay.

Schedule 12 - Secret ballots for protected action

Probably one of the most controversial aspects of the Bill was the proposed introduction of a secret ballot regime for industrial action. According to the Democrats the new provisions pose great dangers of actually escalating conflict, lengthening disputes and making for more litigation. To this end, it was advocated that the schedule should be opposed outright as it does not add to industrial democracy.

Schedule 13 - Entry and inspection of premises by organisations

The Bill proposes replacing the current right of entry provisions with the provisions that were originally rejected in the 1996 bill. In the opinion of the Democrats, the proposed amendments represent an unnecessary and unacceptable impediment on the rights of unions to meet and recruit members, and as such are contrary to the general principle of freedom of association. The Democrats were of the opinion that industrial organisations adopt best practice provisions. To this end the Democrats advocated the development by the Commission in conjunction with employer and employee organisations, of a code of practice on search and entry arrangements.

Schedule 14 - Freedom of Association

According to Senator Murray this Schedule provides a mixed bag of provisions, some of which advance the principle of freedom of association and others that retard it. In short the Democrats were of the opinion that were the Schedule to be passed in full, it would have the effect of tilting the freedom of association provisions more heavily against the rights of unions to organise effectively.

Schedule 15 - Matters referred by Victoria

According to the Democrats this Schedule is essentially beneficial to the interests of Victorian employees, as it expands the rights of industrial inspectors and broadens the access of Victorian employees to minimum conditions.

 In summary, the Democrats appear to have rejected outright eight schedules :

  • Schedule 1 Objects of the Act
  • Schedule 4 Conciliation
  • Schedule 5 Mediation
  • Schedule 6 Awards
  • Schedule 8 Certified Agreements
  • Schedule 9 AWAs
  • Schedule 12 Secret Ballots

Modest in effect but nonetheless considered by the Democrats to be worthy of consideration is Schedule 15, which restores the right of Victorian workers to access the Federal system. However, the following schedules contain provisions that may yet be negotiated even though the major provisions of these schedules have been held by the Democrats to be flawed.

  • Schedule 2 Renaming and restructuring the AIRC
  • Schedule 7 Termination of employment
  • Schedule 11 Industrial Action
  • Schedule 13 Right of entry
  • Schedule 14 Freedom of Association

At this early stage it appears that the Bill may be split and repackaged into smaller pieces of legislation that would be introduced into Parliament next year.

 

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