Simple, clear IR laws needed


Simple, clear IR laws needed

Australian workers lack simple, clear employment laws that give them scope to resolve disputes and make agreements, according to Professor Ron McCallum. McCallum was speaking to HR managers at the Local Government Association HR Conference.


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Australian workers lack simple, clear employment laws that give them scope to resolve disputes and make agreements, according to Professor Ron McCallum. McCallum was speaking to HR managers at the Local Government Association HR Conference.

McCallum was speaking about the future of industrial relations laws in Australia in the light of the coming Federal election. He said that people were concerned about their job security under WorkChoices. He did not oppose the move towards agreement-making at enterprise level, as this was a historical necessity after Australia’s trading had opened up to the world in the 1980s.

Major concerns over changes in IR laws

He said that the reduction of tariffs made it necessary to be able to tailor agreements to individual enterprises, as awards were too rigid. He was, however, opposed to the regime of individual agreements that was introduced in 1996, and especially the changes that were made by the WorkChoices legislation when the Coalition Government gained control of the Senate in 2005.

McCallum said the major concerns of employees were the loss of access to relief from unfair dismissal, the fact that Australian Workplace Agreements (AWAs) could be used to eliminate all but five minimum conditions of employment, and the introduction of the 'operational reasons' for termination. He also objected to the complications that apply to the dispute resolution process, alluding to the fact that the legislation and regulations occupy over 1,300 pages.

He described the laws as 'shambolic', and said that the introduction of the Fairness Test had made the situation a nightmare for employers, as it was unworkable in the way it was written. He said the laws were the product of an outdated ideology.

Election scenario 1: Coalition

McCallum speculated on the outcome of the election, and the implications for future IR laws. One scenario was if the Coalition retained government but lost control of the Senate. He said if the laws remained in place, both employees and employers would resort to side deals such as common law agreements. He maintained that these cannot be effectively banned by legislation.

The Coalition would have to fix the problems with the Fairness Test. Alternatively it might find that it had to ditch the Fairness Test and expand the range of allowable matters in awards. Any changes the Government hoped to implement would have to be in place by 1 July 2009 before the new Senators took their places.

Overall, said McCallum, WorkChoices would need to be softened, even where the Coalition retained government.

Election scenario 2: Labor

Another scenario was if Labor won the election but was not successful in winning control of the Senate. In this case, the Government would still have scope to act, as the regulations can be repealed by the House of Representatives. The Senate would have to vote to overturn the repeal, and there is no certainty that the Coalition would succeed in this move.

McCallum discussed what the Labor Government would do as a priority. He said it would act to reduce the threshold number of employees for unfair dismissal applications from 100 to 15. It would also change the constraints on AWAs. Currently, if an employee moves from an award to an AWA, they can never go back to an award or collective agreement, except by leaving their job.


Labor would also change the constraints on unions with regard to bargaining for workplace agreements. A union would be able to apply for bargaining rights in a workplace, and the Australian Industrial Relations Commission would determine if the employer would accept the union. A process would have to be devised on how the union’s right would be approved.

McCallum commented that the union right of entry provisions in Australia were more restrictive than in most other OECD countries. He said that under a Labor Government, employers would have to get used to bargaining in good faith on collective agreements. He also commented that the Fairness Test had made AWAs less palatable to employers.

State-Federal changes possible

The constitutional aspects of the workplace relations legislation received a serving as well. McCallum said that the corporations power was a poor basis for legislating on industrial relations. He predicted that arrangements with the State Governments will occur. The State Governments will retain their powers, in accordance with the constitution.

However, he argued that the next Government should consider a Whitlam-esque model, where more emphasis (and funding) was given to Local Government.

Having addressed what the Labor Party might do in government, McCallum observed that the changes they were likely to make still would not give employees sufficient rights. He was offering 'WorkChoices Lite'.

The silence about women

McCallum then turned to the silences in the current debate about workplace relations. His view is that the position of women has gone backwards in the last 10 years. For example, in Canada, four out the nine High Court judges are women. New Zealand also has a much higher representation of women in senior positions in public life, starting with their Prime Minister.

He said that Australia has not carried equality for women as far as many other Western nations. Among the major Western countries, only Australia and the USA offer no paid maternity leave.

McCallum was blunt in his conclusion - if we are going to progress in this country, then we must bring in paid maternity leave. The current situation is not good for social cohesion. Women are being kept as second-class citizens.

In closing, McCallum said that Australia has the longest industrial relations laws of any comparable country. He also said a Rudd Government is unlikely to change this.


Future IR tribunal – fewer lawyers, more human rights: McCallum - 2004



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