Labor\'s new IR laws: flexible for whom?

April 19, 2008

The detail of the federal Labor government's plan for its new industrial relations system, to come into force in January 2010, is beginning to come to light. On April 9, the Australian Financial Review reported that it had obtained a copy of a letter sent by workplace relations minister Julia Gillard to a range of unions and businesses. It canvassed their opinion on issues including the scope of allowable content in workplace agreements, the scope of individual "flexibility" clauses to be mandatory in all awards and enterprise agreements and regulation of industrial action during a bargaining period for a new enterprise bargaining agreement (EBA).

The leaked letter indicates that PM Kevin Rudd's government may be looking at further watering down its already flawed alternative to the Howard government's Work Choices regime. The AFR article summarised the contents of the letter from Gillard to the National Workplace Relations Consultative Council (a formal governmental advisory body, containing both union and business representatives) in early April. The letter sought comment on a proposal to place limits on the range of matters that could be negotiated in an EBA.

Under Work Choices, matters that were not related directly to the workplace were declared "prohibited content" from EBAs. Simply calling for the inclusion of matters such as trade union training, unfair dismissal provisions, or a range of other matters, could leave unions liable to stiff fines.

In the lead-up to the last federal election, the Labor opposition pledged to remove all restrictions on EBA content. Gillard's letter places that commitment in doubt. The AFR article refers to "some industry groups" that want limitations on content — pointing to Labor's decision to uphold a ban on unions charging companies fees for non-union members covered by a union-negotiated EBA as an example of how Labor should proceed.

Gillard's letter also canvassed means of "regulation" of protected industrial action during a bargaining period — the only time industrial action is considered legal. Under Work Choices legislation, the minister for industrial relations could request that the Australian Industrial Relations Commission (AIRC) intervene to stop protected industrial action, on occasion where the action was considered to threaten the health and safety of any person, or where it threatened part of the economy. Is Labor planning to incorporate similar draconian limitations into its new IR system?

A significant threat is also posed to the right of the majority of workers to agree to their own conditions of work, by Labor's "flexibility" clause. Labor made provision for the "flexibility" clause to be inserted into all awards and EBAs in its interim workplace legislation passed in March. Gillard has referred the matter to the AIRC to draft a model clause.

The AFR article raises questions as to whether the clause — which would allow individual workers to make separate agreements with individual bosses outside the scope of collective agreements — could undermine the rights of the majority. Speaking to the Sydney Morning Herald (SMH) on April 10, a number of national union leaders raised serious concerns about the flexibility clause, fearing that it may have the power to undermine the right of the majority of workers to agree collectively to their agreement.

"It would be ludicrous to have a flexibility clause that says you can agree to change anything in the award full stop. That would be even worse than an AWA [Australian Workplace Agreement — individual contract] in that there are clearly some things you should not be able to change by individual agreement", Julius Roe, national president of the Australian Manufacturing Workers Union told the SMH.

"A good example of that is overtime and working hours where an employer might find a vulnerable worker to reach agreement to work, say, on a Saturday where the majority of workers do not want the factory opening on a Saturday. Where it is the sort of flexibility that has the potential to undermine the collective there should be consultation with and approval by the collective."

The wording of the "flexibility" clause is yet to be released by the AIRC. Unless tightly regulated — to allow workers to negotiate flexible start and finish times to allow for childcare responsibilities, for instance — it will clearly have the potential to undermine collective agreements.

Speaking to The Australian on April 10, Gillard denied that Labor had any intention of watering-down any of the commitments that it made prior to the federal election in its IR policy document Forward with Fairness. While this may be the case, this is cold comfort for those fighting to enshrine our rights at work. Labor's blueprint for a new industrial relations system shares too much in common with the Coalition's Work Choices monster that it is designed to replace.

While the burden on individual workers will be eased (abolishing AWAs, reinstating some level of unfair dismissal laws), the restrictions on unions (notably the requirement of secret ballots before industrial action and draconian restrictions on union officials' right of entry) will remain. The campaign for just employment laws must continue.

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