Two futures of workplace relations

However, since former Federal Workplace Relations Minister Peter Reith exited from the role, Reith’s successor Tony Abbott and current Minister for Employment and Workplace Relations Kevin Andrews have continually been frustrated by the Senate in their attempts to introduce substantial workplace relations reforms.

Formerly Minister for Health and Ageing, Kevin Andrews assumed the Employment and Workplace Relations portfolio in October 2003. “Our general approach is to say that employers and employees should, wherever possible, have the freedom to negotiate directly their relationships subject to certain minimums such as the safety net,” he says. “We believe that ought to be based on the principle of freedom of association and choice of representation. That is the direction we will continue in.”

While he acknowledges that the Government’s attempts to continue workplace relations reform have been hampered by the Senate, Minister Andrews says he will continue to push for legislation “on a smaller piece-by-piece basis”.

With a number of Bills currently before the Upper House, Minister Andrews gives the example of the Termination of Employment Bill, which would’ve seen employees of corporations come under the Federal unfair dismissal legislation jurisdiction rather than State unfair dismissal laws, as one which is atypical of government policy of the future.

“We think it’s unfair that industrial action can have quite serious adverse consequences on third parties and businesses,” says Minister Andrews. “It’s disappointing that it’s failed in the Senate, but we will continue to work towards simplifying and unifying the system.”

Industrial manslaughter on the table

Industrial manslaughter has been a hot topic for states and territories of late. The Federal Government recently waded into the debate after moving to overturn the amendment to the ACT Crimes Act to include the crime of industrial manslaughter, as Minister Andrews says the ACT legislation could have potentially impacted Commonwealth employees.

Noting that Victoria’s Labor Government recently considered industrial manslaughter legislation but backed off at the last moment, Minister Andrews believes there’s a lack of support for industrial manslaughter laws among other state/territory Labor governments. “We don’t think it’s the way to go forward. OHS is ultimately about educating people and preventing incidents, rather than punishing them after the event,” he says.

While the Federal Government does have the power to introduce a nationally uniform system, Minister Andrews says there are currently no plans to this effect. “The National Occupational Health & Safety Commission is starting to work in a cooperative way with the assistance of the states and territories, and not just the Commonwealth. I think that’s the way to go forward and I will continue to encourage the commission to do that,” he says.

The rise and rise of casual labour

Casual labour is another hot topic in the lead up to the election. With the NSW Industrial Relations Commission currently examining the Labor Council’s Secure Employment Test Case which would give casual employees the right to convert to permanent employment after six months, Minister Andrews believes such initiatives are driven by falling union membership. With membership levels running at about 17 per cent in Australia’s private sector, he says that casual employees tend not to join unions as they prefer the flexibility and loading that comes with the work.

“It’s ideal for young people, young women returning to the workforce after having children, and will be increasingly be used by older workers who want the flexibility to have some interests outside work but don’t want to work full-time,” says Minister Andrews.

He believes test cases such as the one currently before the NSW Industrial Relations Commission are largely redundant, given that casual jobs already lead to permanent jobs “in many instances”. Additionally, when given the opportunity of converting to permanent work, as under the federal Metal, Engineering and Associated Industries Award, Minister Andrews says that less than 2 per cent of the workforce actually took the offer up.

“I think it’s entirely unfortunate and counterp-roductive for the Labor party to be effectively demonising casual employment,” says Minister Andrews. “It’s not as though every worker in Australia is going to be a casual employee in the future. The great growth in casual employment actually occurred under the previous Labor party, and there’s been a slowing of casual employment under us. I think it will plateau off at a level probably not much above where it is at the present time.”

The Australian Bureau of Statistics says that more than 2.2 million people, or 28 per cent of the workforce, are now employed on a casual basis.

Reducing AIRC influence

The Federal Government and the Australian Industrial Relations Commission have often come to blows over industrial relations policy. Witness the recent Redundancy Test case, where the Government moved to overturn the Australian Industrial Relation’s decision to provide redundancy benefits to small business employees.

Minister Andrews says the essential role of the commission is to provide a safety net in terms of minimum wages and award matters, but outside of that its role is limited. “The commission fulfils an important function, but it is subject to the changing environment in which we live. People want more flexibility and they want to be able to negotiate their own arrangements. We see that with the uptake of Australian Workplace Agreements, so they ought to have a choice to be able to do that,” he states.

The ageing workforce

As the previous Minister for Health and Ageing, Minister Andrews is more vocal than his predecessors on the issue of the ageing workforce. With a net growth of about 170,000 people per year in the Australian workforce, Access Economics recently predicted that growth would be just 125,000 for the 10 years between 2020 and 2030.

“One of the major things for HR professionals is how we deal with an ageing workforce,” says Minister Andrews. “It’s important for HR professionals to help their companies do an audit of the age profile of their workforce – not just today but what it’s likely to be in five, ten and fifteen years time – and start to put strategies in place to address that. Companies that do that will have a competitive edge on those that don’t.”

While he acknowledges that it’s not the role of the government to put prescriptions in place to encourage organisations to take on older workers, Minister Andrews says that HR professionals should inform their CEOs and companies that they can’t afford to take a “blanket, short-term view of the world”, because the ageing workforce will affect their companies soon.

“As baby boomers move out of the workforce in large numbers and there’s less young people to take their place, the reality is companies will need to design policies and employment practices to attract the older worker. The financial bottom line is as much an issue there as culture is,” he says.

Shadow Minister for Workplace Relations Craig Emerson

It has been eight years since Labor held power in Federal Government. While the party’s 13-year reign ended in 1996, it paved the way for many of the Howard Government’s policies with a raft of workplace relations reforms.

Many of the reforms Labor initiated have faltered under the Coalition, according to Shadow Minister for Workplace Relations Craig Emerson. He says these would be resurrected with some fundamental changes to workplace relations policy that would take a middle road between deregulation and a fully centralised system.

“We believe the government stalled in terms of ongoing reform that would identify and attend to new sources of productivity growth and skills improvement,” he says. “We do have different industrial relations policies, and those of Federal Labor are not philosophically or fundamentally different to those of the state jurisdictions. As such, we would make some amendments to the Workplace Relations Act so that the federal system is similar in approach and philosophy to the state systems.”

AWAs and enterprise bargaining

One of the more significant changes under a Labor government would be the abolishment of Australian Workplace Agreements (AWAs). “We would allow existing AWAs to expire, but there would be no new AWAs under Labor,” he says.

Labor supports the process of enterprise bargaining, and Emerson says employees would still be able to negotiate individual common law agreements and collective union and non-union deals, subject to a safety net of awards.

“We fundamentally support the right of working Australians to be represented by their chosen representatives, and if that’s a union, then that’s a good thing,” he says. “At present if employees choose to be represented by a union in enterprise bargaining, the employer doesn’t necessarily have to recognise the union. We think that there should be genuine freedom of association and a right to bargain collectively.”

Boosting AIRC power

Another major shift in workplace relations policy under a Labor government would be a restoration of Australian Industrial Relations Commission (AIRC) powers. Emerson says the role of the AIRC has diminished under the Howard Government, much to the detriment of Australian workplaces.

“The commission is an independent umpire and there should be a restoration of its capacity to arbitrate in intractable disputes,” he says. “We don’t think it’s in the nation’s interest for disputes to go on for week after week with no capacity for someone ultimately to come in and resolve it.”

Emerson says that the AIRC is powerless if one party won’t agree to arbitration as the Coalition Government removed this power except where two parties agree to arbitration, along with the provision that parties must bargain in good faith.

“We would change the Workplace Relations Act so that the AIRC would be able to arbitrate in intractable disputes, and insert a requirement for parties to bargain in good faith – they have to come to the negotiation table genuinely trying to resolve any disagreements,” says Emerson.

Casual labour options

With the NSW Industrial Relations Commission currently examining the Labor Council’s Secure Employment Test Case and other Labor states watching on in keen interest, Emerson says a Federal Labor Government would provide casual employees with a right to convert to permanent positions.

“Award provisions will allow casuals employed regularly for a set period of time, which can vary according to the industry, to ask to convert to permanent employment,” says Emerson.

Employees who do not want to become permanent can remain casual, but for those who do wish to convert employers would not be able to refuse “unreasonably,” he says. In determining reasonableness, the AIRC would examine issues such as the size and nature of a business.

“If long-term regular casuals do convert, they gain entitlements enjoyed by permanent workers like sick leave and annual leave – and forego their casual loading.”

Emerson says the reasoning behind Labor’s casual policy is that there is little incentive for employers to invest in the skills of casual workers as they may leave in search of more secure employment. “This is one of the fundamental flaws in government strategy, in that it seems to embrace long-term casual employment as a model form of employment. This approach is not consistent with skills development in Australia, and fundamentally we don’t agree with a low wage, low-skilled workforce. We don’t think that’s necessarily in the best interests of employees, employers or the nation,” says Emerson.

Curbing outsourcing

The Australian Labor Party has expressed concern over the increase in outsourcing by large corporate of late, and Emerson would encourage employers to curb the this trend.

We’re concerned, for example, about the activities of Telstra in terms of its outsourcing program,” he says. “They seem to be on and off again outsourcing programs in relation to outsourcing to other countries. We wouldn’t prohibit outsourcing, but at the same time we would encourage employers to recognise that this country’s future lies in high skills and we’re better off investing in the skills of our workforce.”

Another platform in the NSW Labor Council’s Secure Employment Test Case is a restriction on outsourcing, and Emerson says he empathises with the council’s concerns.

“This is the right time to invest in the new sources of productivity growth rather than simply say, ‘Well, we can cut costs tomorrow but let’s not worry about the medium-term.’ We won’t be implementing heavy-handed measures in relation to outsourcing decisions but we would certainly want businesses to think about the long-term bottom line of the business and the nation.”

The ageing workforce

Demographic changes in Australia’s workforce are a challenge for both Coalition and Labor Governments.

Emerson acknowledges that organisations have to radically change their thinking in relation to hiring older workers, but would take a different approach to Minister Andrews’ and opt instead to remove impediments that mature age workers might face if they wish to stay in the workforce.

“If mature age workers are going to lose their jobs, for example, we need a system whereby they start working on it before they lose their positions to ensure they can transfer into other positions,” he says.

Another solution is to encourage early proactive involvement in labour market programs to ensure that mature age workers aren’t left in a position where they’re out of a job for six months before coming to realise that they may not secure further employment, he adds.

“We will look at a suite of ideas to ensure that mature age workers who lose their jobs aren’t left in a position where they’re left without a job and left out of the workforce for a number of months.”