By Ana Kailis
A leaked draft agreement between the federal government and the ACTU on changing industrial law has been heralded by the Australian as a big win for unions.
The deal, which includes changes to secondary boycott legislation and common law sanctions and an increase in the powers of the Industrial Relations Commission, in reality does little to improve the rights of workers. Rather, it further entrenches the IRC as the overseer of enterprise bargaining.
The proposed changes include:
- The right to strike will be limited to an officially declared bargaining period, and only after notice has been given of any intention to engage in industrial action. The bargaining periods will be determined by the IRC. There will be a ban on any "surprise strikes". Once a certified agreement has been reached, any breach will attract substantially increased penalties.
- The notorious Sections 45D & E of the Trade Practices Act will be scrapped. These sections have in the past severely restricted secondary boycotts. However, secondary boycotts will not automatically be legal. Employers may still apply to the IRC to gain access to secondary boycott sanctions against unions.
- The IRC will have the right to call an end to any industrial action affecting essential services at any time. Separate federal essential services legislation does not exist at the moment, so this is a step backwards.
- Common law sanctions which have been used against unions in the past, such as in the Dollar Sweets dispute, will now be available to employers only on application to the IRC. If the IRC can certify that an end to industrial action cannot be reached, common law sanctions can be used as usual by employers.
- Sections 311 and 312 of the Industrial Relations Act, which makes industrial action breaching an award a criminal offence, will be repealed. These sections were used during the 1989 domestic pilots' dispute.
- Employers will no longer be able to dismiss workers over involvement in industrial action. This will cover disputes only in the IRC-defined bargaining period and will not cover any action exempt from immunity in that period.
- New penalties will be introduced to be used by the IRC if it considers that either a union or an employer is not "bargaining in good faith", when engaged in enterprise bargaining.
These changes will further curtail the ability of workers to take industrial action. While during the "official bargaining period" most unions will be able act, once an enterprise agreement has been struck, any breaches will be heavily penalised. Workers in essential industries may be penalised for any industrial action at all.
Even the concept of "official bargaining periods" is highly suspect. Can it be guaranteed that the IRC will not call the period over Christmas or at other times when the chance of industrial action is reduced?
While posing as an independent arbiter, the IRC has very rarely ruled on the side of workers in industrial disputes. The IRC president, Barry Maddern, was previously a chief employers' advocate. Most IRC decisions will continue to advantage employers over their employees.
With the Australian and employers hailing this agreement as a "win for the unions", it will most likely now be used by the federal government and industrial relations minister Laurie Brereton as the carrot to bring the ACTU around on the issue of non-unionists in enterprise deals.