Labor & Workplace Relations – and how might a new Senate feel about them?

Kevin Rudd made some substantial shifts in Labor’s industrial relations policy in his Press Club address this week, releasing

four new elements of Labor’s IR policy – a new national uniform system for the private economy; mandatory secret ballots; the abolition of strike pay; and new unfair dismissal laws that create flexibility for small business operators – other elements of our policy will be progressively released between now and the election.

Before exploring this a bit further, I should note that even if Labor is elected to government at the end of the year, there is no chance at all of them controlling the Senate – which is a good thing in my view, as I don’t think any single party or grouping should do so. So whatever proposals they put up will still have to agreed to by a majority of Senators after the election. I haven’t seen any commentary on how Labor’s IR proposals might fare in the various possible post-election Senate compositions. (Naturally, I hope to still be one of those Senators, but we’ll see what the voters of Queensland have to say about that later this year.)
The response from trade unions to these new measures announced by Kevin Rudd has been very muted, with only a few exceptions. On the one hand, this is no surprise, as they obviously feel they would still get a better deal from Kevin Rudd than John Howard, so they have to cop it sweet – indeed I suspect Mr Rudd might even have liked a bit more kicking and squealing, just so he can show he’s not ‘captive to the unions’.

On the other hand, having repeatedly voted in the Senate to defeat measures such as a secret ballot and legalising unfair dismissal a number of times over many years, I know I would have been publicly ripped to shreds by any number of unions if I had supported either of these things, so it does grate a little bit to see them meekly accepting what are very significant shifts.
Not that public criticism would have stopped me supporting measures if I thought they were a good idea, or justifiable on balance. I have supported some of the Coalition government’s IR measures – a couple of which copped us a bit of a pasting from some quarters. I can still recall former Labor Senator, the late Peter Cook, in debate in the Senate at about 1 o’clock in the morning, accusing me of supporting fascist and evil legislation, complete with a reference to the Nuremburg trials, when I agreed to a hugely watered down measure aimed at addressing issues in the building industry. Plenty on the doctrinaire left still take potshots at the Democrats more than ten years after then leader Cheryl Kernot agreed to a range of IR changes – albeit heavily amended ones – in the first year or so of the Howard government.

I find a lot of the debate around workplace relations involves people reacting to terminology or perception, rather than the substantive details. Sometimes of course it is just plain smoke and mirrors. The focus on Labor’s intention to abolish AWAs is part of this. The issue isn’t getting rid of AWAs – which after all is just a name – it is what will replace them. I simply cannot believe that Labor would completely prohibit individual workplace agreements, or on the other hand have common law contracts without some form of underpinning statutory protections. There will still be scope for individual agreements of some sort. The issue is the legal framework those agreements have to operate within.

Kevin Rudd’s modified approach on unfair dismissals is currently being slammed by John Howard as a surrender to the unions and a disaster for small business and jobs, but as was pointed out in this piece by Patricia Karvelas, “Mr Howard called for the same model in 1997, well before he had control of the Senate and the ability to deliver more radical reform.

I think Labor’s new requirement “to outlaw industrial action unless there is a secret ballot” is far more significant. One should wait to see the fine detail, but Kevin Rudd’s announcement doesn’t seem to leave much room for qualification. I don’t know of much evidence that such a measure is either needed or even necessarily particularly workable, and it is hard to see why Rudd would do this except for political purposes.

Being a democrat, balloting things always appeals to me as an option, but to mandate it in all circumstances seems both excessively bureaucratic and potentially counter-productive. I don’t oppose the option to have a ballot, but mandating it as essential seems excessive to me. Ballots were able to be done under the pre-WorkChoices law. Pre-strike ballots used to be available to employees if they wished to use them, and the Industrial Relations Commission could order secret ballots at its discretion, but these provisions were rarely requested or used. Of course, elections of union officials have been by secret ballot for some time. I understand Western Australian used to have some rigid secret ballot requirements at a time when the Coalition had control of the upper house over there, and I don’t believe they were found to have been helpful in improving industrial peace or reducing disputation.

Canberra Times economics editor Peter Martin had a piece on his website last week reacting to Kevin Rudd’s speech, entitled “Workchoices 12months on: Howard has won” and saying

“Just as is the case for the GST, WorkChoices may be changed, but it will never be dismantled.”

The content of the article suggests he is basing this conclusion mainly on the fact that Labor has said they will retain – indeed complete the expansion and implementation of – a national system. This is one thing I never doubted Labor would do. Whilst I’ve become less of a centralist over the years, I do think a single system of workplace relations laws is desirable – even though I don’t like the content of the current set of national laws.

I wouldn’t see maintaining a national system as a win for Howard, or indeed as maintaining ‘WorkChoices’. The key features of the so-called WorkChoices system is not that it is a centralised national system, but the way it is fundamentally anti-union, its destruction of the previous long-standing system of conciliation and arbitration, and its removal of most of the safety nets in place to protect workers with weaker bargaining power.

However, it is true that Kevin Rudd’s shifts announced in his Press Club speech do represent some partial, presumably permanent, gains for Howard in the workplace relations area. George Megalogenis expands on this in his recent piece in The Australian, where he says “Rudd’s Work Choices lite is already more radical than the status quo that applied in the run-up to the 2004 election.” (I presume ‘radical’ in this context refers to the radical changes pushed through the Coalition controlled Senate by John Howard.).

But one of the biggest details yet to come is what will replace AWAs and what happens in respect of what I call the safety net of minimum conditions and entitlements – or what used to be called the no-disadvantage test which used to apply to AWAs under the version the Democrats agreed to in 1996. It is the removal of this safety net that was one of the biggest changes made by the Coalition controlled Senate, as “it ended a century of assurance from government that it could guarantee the nominal pay and conditions of all workers.” This to me is far more significant that what name is used to replace AWAs. As Megalogenis says,

“if the only thing Rudd changes on AWAs is to restore a few extra conditions – say, penalty rates for working on weekends – and to rename the piece of paper a common law contract, what exactly is the difference if it doesn’t come with a so-called no-disadvantage test?”

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24 Comments

  1. Perhaps Rudd has figured out that you can’t turn a country around in just a few months or even a few years. Instead, you need to slowly change direction.

    I would expect 10 years into a Labor government we might see the introduction of sort of the nega-WorkChoices Act, one that is as equal in extremity to WorkChoices but in the opposite direction, (for example a law that forces us to join unions or something) and is just as toxic to Labor as the current WorkChoices scheme is to the Liberals.

  2. The most importatn point you have rightly identifeid is that in some form or otehr the system will not revert – no matter how rosy and dewy eyed those who will vote the Govt out would like to think so – to the past. It’s simply anotehr example of public policy change oevr time.

    Much like the legacy of Keating that we are all (particualrly Costello) benefitting from now, so the IR future will be in this dierction in some form or other – despite cocanuts view there wont be reversion to totalitarianism

  3. I woudnt have thought that Labors oligarchs would permit the Senate to function, once elected. That way they can get rid of it, and declare Australia a Republic. But only after the secret conversion of course.

  4. It’s interesting to remember the Prime Minister’s response to the now former Leader of the Opposition’s stance on aboloshing AWAs:

    I think he got mugged by a bit of reality. And the reality is pronounced New South Wales unions.

    John Robertson and his merry men said to the Leader of the Opposition, “Kimbo, if you don’t front up and abolish AWAs, we’re going to roll you.”

    As for the level of support for this policy, is has been noted in the Age that:

    Labor’s strongest primary vote is in Victoria (54 per cent), its weakest in Western Australia (36 per cent). Its promise to abolish Australian Workplace Agreements is going down badly in WA, where AWAs are popular in the mining industry.

  5. Do you think it might be weakest in WA because they have bosses who can sack people at the drop of a hat, let them live in appalling conditions and unsafe working conditions like we saw at Karratha and that the boom will end sooner rather than later?

    WE saw this in WA before in the 1970’s and 80’s because they are just plain greedy and isolated.

  6. I think you missed the point Marilyn. Abolishing AWA’s is unpopular in WA because the few people in the mining industry are making lots of money from them.

    However, it’s those in the retail and hospitality industries (affecting a lot more people than mining) who are losing out.

    ANd a question for Andrew: I note Steve Fielding has announced a Private Member’s Bill to water down Work Choices. Didn’t he vote for it in the first place?

  7. Having been unemployed most of my life or unpaid,there is nothing at this site today that has any appeal and seems to be the tired,very tired analysis of wether or not there is an ongoing class warfare.A SMH journalist thinks the Democrats are imploding,well I think also Rudd doesnt know what he is doing re IR because essentially the Unions have middle class tendencies and are not workers unions.I come up against a vacuous insult when I explain.. to be working class could not mean having a mortgage.It simply impossible to claim much of Australian unionism is worker based.The unions are powerful middle class aspirers and do not act like working class organisations.What actions are working class? Working class intellectual activity in the job and elsewhere.It is pointless action having pro worker signs up on the roof of a work place in defiance of management..that is defiance, not pride in work community and the power of persuasion by intelligence and resolve.If we had genuine worker unions the threat of intelligent well informed people in the workplace would mean constant acceptance by employers.Australian workers act like gamblers rather than people engaging in changing the material of existence.In an international sense looking after the rights of clothing workers may mean sewing machines work on other material besides cloth to encourage more monetary gain.So if we have stuff marketed into this country we find new uses.In Clark Rubbers today in Coffs Harbour I noticed hessian material over rubber sold as dogs beds.$12.00.Seeing rubber soaks up water and hessian can hold water in, to an extent….maybe there are other uses for this.This marketing experimental attitude applies to all manufacturing,and it must be recommended to workers to think what is happening to their work,in the market place,otherwise the real insights from work remain immature mateship,half-citizens,because the employer has some prior right in how labor works.Independent minds in production.

  8. muzz – No, Steve Fielding voted against Work ‘Choices’ at the final vote. Barnaby voted for it (remember when he ‘saved Christmas’?) so Fielding didn’t have to. (read my as it happened account of the final stages and votes from that stormy day on 2 Dec, 2005) (which from memory was also the 33rd anniversary of the Whitlam government’s election and the 16th anniversary of the Goss government’s election).

    Zarathustra asked “How would the Democrats vote on the Rudd proposal for IR laws?”

    I can’t speak for all Democrats on this site, just myself. However, seeing I’m trying to get re-elected to the Senate, it’s a reasonable question to ask. It depends which “Rudd proposal” you are referring to.

    Any major changes would go to a Senate committee first, so I’d want to see all the evidence derived from that, plus the actual detail of the “proposal”. I would hope I would also have had time to consult the Democrat members in Queensland about their views.

    However, on the secret ballot measure – if it was the same as have been bowled up by Howar in the past, I’d expect I’d vote against it – there’s too much red tape already in IR, and I don’t see evidence we need more for this purpose.

    on the unfair dismissal measure – I’d support amendments to return some protection against unfair dismissal. I’d be interested in any genuine evidence of the impacts of abolishing unfair dismissal protections – the argument was always that this would create jobs, but it was hard to see any real evidence. If there was some, I’d consider it, but to me it just leads to situations like those described by my constituent in this other post, so in the absence of any decent evidence I’d prefer to see the unfair dismissal laws revert to the way they were.
    On abolishing AWAs – I certainly support changing the current laws. The big question is what would replace them. I support putting safety net protections against exploitation and driving down conditions back in place, rather than trying to stop people having individual contracts for some ideological reason. This would also mean the miners in WA who are allegedly anxious about the abolition of AWAs would have no reason to be.

  9. Perhaps all the West Australian Miners and all the Doctor’s Wives can get together with their friends the Aspirationals and have a big party. They can invite the Polish Plumbers along.

  10. Senator Bartlett,

    Do you believe that the Democrats’ support for abolishing AWAs will assist the Democrats in receiving ALP preferences in the Senate ahead of the Greens and Family First?

  11. I doubt it CU. In my experience such matters only play a limited role in preference decisions, and the Greens’ position will be far more hardline towards collectivism than mine (based on their past record)

    In any case, as I’ve mentioned, “abolishing AWAs” doesn’t mean a lot until it’s clear what they are replaced with. It’s a shorthand way of saying you’re opposed to the current rules regarding AWAs (which I am), but says nothing about what your preferred alternative is.

  12. At least I have pursued my own battle against the unconstitutional WorkChoices legislation and provided the judges with a preview of my response to their judgment, which is due to be published in a few days in

    INSPECTOR-RIKATI® on IR WorkChoices legislation,
    A book about the validity of the High Courts 14-11-2006 decision
    ISBN 978-0-9751760-6-1 (Book-CD), 978-0-9751760-7-8 (Book-B&W), 978-0-9751760-8-5 (Book-Colour)

    Considering that neither my wife or myself are affected by WorkChoices legislation it is that I am doing it to seek to restore “civil rights” for all, as it relates to our constitutional rights.

    My blog at http://au.blog.360.yahoo.com/blog-ijpxwMQ4dbXm0BMADq1lv8AYHknTV_QH. and my website http://www.schorel-hlavka.com

  13. Interesting website you have there, Schorel-Hlavka…

    “I maintained that the writs of the purported 10 November 2001 federal election were defective and so the purported election was without legal force and John Howard and his cronies were in fact not elected at all.”

    Given that Senator Bartlett was elected at this so-called ‘purported election’, does that also mean that he was also ‘in fact not elected at all’?

  14. Further to the topic above, another detail in the ALP’s IR policy was released today (see story here) – to abolish the Industrial Relations Commission and “replace it with a new body called Fair Work Australia.”

    Apart from agreeing with John Howard that it’s a strange day to release what sounds like a very significant policy shift, I’d want to see the detail before commenting too much. Streamlining what is currently a very bureacratic, albeit unfairly balanced, system would be a good idea – but there’s plenty of occasions in the past where an old bureacratic structure has been ‘streamlined’ into a new one which ends up being even more filled with red tape than the old one.

    Joe Hockey’s had no trouble launching straight into comment though:
    “Labor’s retrograde proposal will do away with the security and safety provided by genuinely independent bodies such as the Office of Workplace Services, Australian Building and Construction Commission and the Fair Pay Commission.”

    I’d love to know if managed to keep a straight face while saying that one.

  15. I have had over 30 different jobs and occupations.Was often paid above award or cash bonuses for my labours.Unions never helped me.$2 a week pay rise and a watercooler.To the contrary i saw corruption. Gangs of thieves, thuggery against persons, many times to get another thug a job by removing someone else one way or another.Cronyism between workplace foremans and union officials.Etc. Andrews observations above are valid.”Fair Pay Commission” What a joke.Meat workers and tannery workers local are getting up to 1000 dollars a week with overtime.A place at Charleville only pays 4 to 5 hundred, which you can barely survive on, especially out there, let alone stake out a future unless you pray to have a lotto win in your working life.They only pay that because they have imported foreign labour.Crime and organised crime is going to go through the roof.Seen it all before.Plenty of lawyer food and fear for everyone.Jails are big business.Goodbye oz hello america.Doctors and all.The powers that be have been working on this for years.And it will turn into class wars and have and have nots.And no one will stop firearms coming into this country.We are all going to pay dearly for the extravagances of the medical and legal trades and artificialy manipulating our system to keep them at the top of the food chain.Americans will tell you -once the houses start going skyward [cluster housing] it’s time to get out.Big business does’nt care about people or consequences of their grand money making adventures.Lemmings.My father was killed and my family and lives destroyed over medical and legal manipulations of our system in 1975. More to come if anyone wants to listen. No i’m not mad.I have plenty of proof.The subject usually frightens hell out of most people. I’ve lived it for nearly 50 years.You can make change but you need to deal with false perceptions of life in oz first.I do not think any politician survives who goes against the grain. It takes knowledge and people to make change.

  16. These matters are bigger than any politician.Does public placation also include hiding the truth from Australians?The damage we are reaping today from the hospital system and other matters ,was put in place with much stealth and purpose years ago. A suggested read for a legitimate background would be Bill Haydens book on the doctor wars.Much of the noise on the media today is to furphy around while further entrenchment of a system hostile to oz values is put in place.I believe that a republic will cement it in. And so will you when you hear the truth.Does anyone want me to continue? It’s a world shaking experience.Most people are scared to death when realisation sets in.And i’m not fond of typing.I’m quite happy to leave you all alone.As my country and it’s peoples left us to the dogs.My concern is for my children. If Andrew can oblige i can also post documentation and evidence from FOI and others on the matter.I would imagine that i have to leave out some names till Andrew understands that i’m relating and proving the truth.Ready for some “rhetoric” Andrew? Am i allowed? I’ve been at Canberra for 20 years over this, i find it hard to believe you hav’nt already heard.Is this allowed over the net?

  17. This if off-topic, but congrats to Grey Areas whose comment above was the 15 000th comment on this blog – not that I was offering a prize or anything, but I thought it was worth acknowledging.

  18. To quote Senator Bartlett:

    “But it is simply unacceptable to deliberately misrepresent and verbal someone, especially when they are not a participant in the debate on this thread.”

    And yet Senator Bartlett seems that doing so is OK, as long as his comments are directed at the Minister for Employment and Workplace Relations.

  19. Really CU, if you can’t make an adult contribution, please don’t bother.

    I provided a direct quote of the Minister’s. It is not my fault his words are hypocritical. If you genuinely think providing a complete, direct quote of someone equates to misrepresenting or verballing them, then you have clearly have a problem with basic comprehension.

  20. Basic Comprehension Failure here!?Is this the same Joe Hockey with a mouth that works who seemed to think it unreal that a local inventor out here had the temerity to show up somewhere that he was without the official help of the Hockey,thus leading to a dismissive smart-arse comment of what are you doing here.Strange how Liberals give out advice but when someone shows their own initiative they simply cannot handle someone trying to find that oppurtunity to advance.No wonder that person admired a recently retired upper house member of the ALP in N.S.W. simply by comparison of attitudes, Hockey the Bear came last.No doubt if I be wrong others wont be.

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