WorkChoices v Forward with Fairness: what do employees and employers think?

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WorkChoices v Forward with Fairness: what do employees and employers think?

An attempt to provide a 'stakeholder perspective' of previous and current IR legislation changes revealed some interesting insights at a session at last month’s Industrial Relations Summit conference, held in Sydney.

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An attempt to provide a 'stakeholder perspective' of previous and current IR legislation changes revealed some interesting insights at a session at last month’s Industrial Relations Summit conference, held in Sydney.

Michael O’Sullivan, National Human Resources Manager of the Laminex Group, discussed employer and employee perceptions of WorkChoices both while it operated and in hindsight, as well as their reactions so far to the Forward With Fairness changes. The Laminex Group has 1,900 employees in Australia, covered by more than 40 agreements, and deals with seven unions.

The impact of WorkChoices

O'Sullivan said that WorkChoices impacted on businesses in the following ways:

  •  It removed a lot of duplication with State industrial relations systems, but some State laws still applied (eg long service leave, EEO, OHS and workers compensation).

  • The Australian Fair Pay and Conditions Standard required Laminex to review all employee agreements and entitlements for compliance.

  • There was a big initial compliance burden, with high legal costs for reviewing employment documents.

  • It marked the beginning of the end for compulsory conciliation and arbitration, but O’Sullivan added that the Australian Industrial Relations Commission is a cost-neutral forum and employers were generally happy with how it worked.

  • The “operational requirements” exclusion added to the dismissal provisions was helpful to employers.

  • The “prohibited content” restrictions were also helpful.

  • Awards generally became less relevant. Laminex moved mainly to collective agreements, with no AWAs.

  • Line managers required extensive education to cope with the changes.

And in hindsight…

O’Sullivan said that there were good and bad outcomes.

Bargaining processes tended to focus on more relevant and more pragmatic issues, and third party agendas became less relevant.

On the other hand, he described the lodgment and approval processes for agreements as confusing and bureaucratic, with long delays still a problem.

He believed the previous system handled by the AIRC worked much better and added that 'at least you knew who you were dealing with'. He also criticised the lack of an appeal mechanism against Workplace Authority decisions, for example if the employer believed the Authority had used the wrong award as the reference instrument for the test. He added that the AIRC gave the parties the opportunity to appear before it in person and attempt to explain and justify their decisions.

Two final general observations:

1 WorkChoices took no account of the crucial issue for stakeholders of employee engagement.

2 Overall, employers failed to take advantage of the opportunities offered by WorkChoices, and failed to successfully challenge the ACTU’s campaign against it.

What employees thought

In O’Sullivan’s view, employees showed little interest in the community protests against WorkChoices. However, they expected detailed communications about its effects from their employers, and their biggest concerns appeared to be about the processes for negotiating new agreements, in particular what matters could be included, or had to be excluded.

He reported that they took greater direct interest in workplace matters that had previously been handled by their representatives.

Expectations from Forward With Fairness

Overall, O’Sullivan does not see the proposed changes as having a big impact, although he did have some criticisms.

Firstly, the central elements of WorkChoices will be retained, with only its most controversial features being removed. It is still not productivity-focused, despite claims made by the Minister, and still does not address engagement-related issues. It will have little or no impact on agreements made before 27 March 2008, which will continue to operate after 1 January 2010 until they expire or are terminated.

Significantly, he claimed that Forward With Fairness will maintain the principle that Governments tend to be reactive to decisions and events and simply use their powers to 'give and take away'.

The new no-disadvantage test is unlikely to overcome the processing problems referred to above, as the issue is the expertise, speed and efficiency of the test administrators. It remains to be seen whether Fair Work Australia will address that issue. It also remains to be seen whether, in general, Fair Work Australia will take a mainly 'facilitative' or 'interventionist' approach. O’Sullivan suggested that transferring current AIRC staff en masse to Fair Work Australia when the time comes would be a good idea, given the good reputation of the AIRC.

O’Sullivan remarked that Laminex was already receiving enquiries about restoring some of the agreement provisions that are currently 'prohibited content'.

Further information

Further information about the Summit, held on 20-21 August 2008, is available from its organiser, Informa.

Related 

Forward with fairness, or idling with ideology?


 

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