Australian Financial Review http://afr.com.au/content/991210/feature/feature1.html December 10, 1999 Labor States stage industrial revolution By Stephen Long It's a quiet coup for the Industrial Relations Club and it's passed virtually unnoticed. While national attention focused on the Federal Government's failed attempt to ride its "second wave" of workplace reforms through Parliament this year, Labor States have set about a far-reaching re-regulation of the labour market. Not only do the new State laws boost union power and return the industrial tribunals to centre stage, they carve out a whole new territory for regulation. For the first time in Australia, the Beattie Government's Queensland Industrial Relations Act touted by Federal Opposition leader Kim Beazley as an in-principle model for a future federal Labor government gives the State Industrial Relations Commission power to "deem" whole classes of people who work as contractors to be employees and place them under award regulation. "It envisages a reach for industrial relations regulation that is truly breathtaking, historic and unprecedented," says Ken Phillips, a member of the pro-deregulation H.R. Nicholls Society and an advocate for the labour hire industry. "It makes it possible to bring normal, commercial contracts within the ambit of labour regulation." "It's a very, very broad power," the Federal Minister for Workplace Relations, Peter Reith, says. "The commission has a very broad power and they will use it." Reith told The Australian Financial Review yesterday that the new Labor paradigm had shattered the consensus in favour of labour market deregulation that prevailed on both sides of politics during much of the decade. In the Coalition States and federally, meanwhile, hostile upper houses have scuppered attempts to extend labour market deregulation, with South Australia and Western Australia yet to pass laws matching the federal legislation paring back awards to 20 core entitlements. "From the start of the 1990s both the federal and State systems everybody had moved to an enterprise basis," Reith says. "What these [State Labor] laws are doing is moving the system back to a union-based, multi-employer agreement basis. I think it's unsustainable." But Labor and its advisers see the laws as a necessary response to the rise of precarious forms of employment and as a vote winner. "What you are seeing in the State statutes is the real wave of the future," says Professor Ron McCallum of the University of Sydney Law School, who helped draft the Queensland Industrial Relations Act. "The community is not going to stand by and see more and more people who only have their labour to sell being manipulated by clever legal arrangements into being independent contractors with no parental leave, no unfair dismissal, no holidays no rights, basically." Although the federal legislation has dominated debate, the State laws actually have a bigger impact in sheer numerical terms. In Queensland, 55 per cent of employees are covered by State awards, with just 28 per cent in the federal sphere. In NSW, too, almost half of all employees fall under the State jurisdiction, while a small minority fall within the federal jurisdiction. The Beattie Labor Government's legislation, enacted mid-year, is the most radical of the State laws introduced so far, and it's clear that it has set a benchmark other Labor governments will follow. Although the NSW Industrial Relations Minister, Jeff Shaw, will only confirm that NSW is considering the Queensland provisions giving the IRC power to declare people working under "contracts for service" employees, it's understood that his department is already working on just such a law. The contractor provisions are but one aspect of the Queensland act which has established a new high-water mark for regulation. The legislation scrapped a short-lived statute harmonising the Queensland system with the Reith reforms. In its place, Labor's act: Reinstates unions' rights to enter any workplace with 24 hours' notice and inspect time and wages records of all employees, including non-members. Requires that unions be notified when an employer applies to register a non-union certified agreement. Allows "union encouragement" clauses to be inserted in all awards by arbitration (unions have a test case on the issue before the QIRC now). Scraps the Queensland Employment Advocate, placing individual workplace agreements under the purview of the State IRC, and restricting access to the agreements to workers over 18. Abolishes the previous government's exemption from unfair dismissal laws for small business, putting in its place a mandatory three-month probation period for all employees. Lets unions take industrial action in pursuit of multi-employer enterprise agreements, in a major fillip to unions in industries such as construction. Labor's act also scrapped "award simplification" laws that required State awards be stripped back to 20 allowable matters as they have been in the federal sphere. And the State's new wage fixing principles further strengthen the award system, allowing the gains unions win through enterprise bargaining to flow back into awards - a move that employers claim will reduce incentives for enterprise bargaining. Rights for minorities and women have also been bolstered in the Queensland act which in a world first extends to gay and lesbian couples rights to take all forms of family and parental leave by widening the definition of "spouse" to include same-sex couples. Casual employees have gained rights. The laws have left at least some employer representatives fuming. "This is an attempt to turn back the clock to the bad old days of the 1970s and 1980s," the Australian Chamber of Commerce and Industry's manager, labour relations, Reg Hamilton, said yesterday. "I call it the victory of the cloth-hat brigade," said Judith Himstedt, workplace relations manager with the Queensland Chamber of Commerce Industry. "Most employers are deeply concerned." Arch Bevis, the federal Opposition's industrial relations spokesman, and a former Queensland union official, says these comments are sour grapes and are not representative of the mainstream employer position. "I know QCCI have bitched about it," he says. "The fact is their nominee on the committee signed off on it." In Tasmania, combined opposition from employer associations forced the State Labor Government to modify its planned legislation. The Tasmanian bill, now before a committee of the upper house, would allow the State industrial commission to impose compulsory deduction of union dues by arbitration. It would also scrap laws that allow enterprise agreements that fail to meet a "no disadvantage" test benchmarked against the relevant State award to be approved if the employer was facing serious financial difficulty, and give union officials rights to enter any workplace where they have a member or "potential" member. Unlike its counterparts federally and in Western Australia, Tasmania's ousted Coalition Government never introduced a statutory system of individual employment contracts. Nonetheless, the Bacon Labor Government plans to abolish a separate stream that allowed a "workplace agreements commissioner" to vet deals made directly with employees or a non-union works committee, handing dominion over non-union agreements to the State industrial commission. And Labor wants to remove confidentiality provisions surrounding non-union agreements, requiring that the commission publish names of employers who enter them a move the Tasmanian Chamber of Commerce and Industry's Terry Edwards says would give unions "open slather" to intervene and recruit at non-union workplaces. Victoria, meanwhile, is soft-shoe shuffling around its election commitment to re-create the system of State awards and industrial tribunals abolished in the early-1990s by the Kennett Government, and reverse the ceding of State industrial relations powers to the Commonwealth. But it's clear the tide running in favour of labour market deregulation has started to turn. And the world will become a more hostile place for companies that use tough tactics to introduce individual contracts. This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. ************************************************************************* This posting is provided to the individual members of this group without permission from the copyright owner for purposes of criticism, comment, scholarship and research under the "fair use" provisions of the Federal copyright laws and it may not be distributed further without permission of the copyright owner, except for "fair use." -- Leftlink - Australia's Broad Left Mailing List mailto:[EMAIL PROTECTED] http://www.alexia.net.au/~www/mhutton/index.html Sponsored by Melbourne's New International Bookshop Subscribe: mailto:[EMAIL PROTECTED]?Body=subscribe%20leftlink Unsubscribe: mailto:[EMAIL PROTECTED]?Body=unsubscribe%20leftlink
