Peter Reith’s spectacular re-emergence into Australian politics has enlivened the so-called “IR” debate.
The political spin on all sides is, of course, familiar. It’s about the burden on business of too much regulation, “go away money” inherent in the unfair dismissal regime, the bogeyman of Big Unions stifling the individual choices of workers, the out of touch tribunal captured by labour interests, the countervailing arguments about “fairness”, the “high road” to improved productivity, the “independent umpire” and (in very soft tones) the dictates of international legal norms to do with collective labour relations.
These are the terms of regulatory debates since the 1980s, if not earlier. Even the HR Nichols Society is copying its pamphlets and gearing up for the fight.
But what is really going on? How did Australian labour law change with the introduction of the Fair Work Act? And what is the current and likely future impact of those changes?
Tough measures still in place
How the law changed, and the question of what those changes mean for the real world, are two very different issues.
Legal academics tend, in the first instance at least, to focus on the nature of the legal change.
In this regard, the Fair Work Act continues many of the Coalition’s policies.
It maintains aspects of the tough anti-union measures introduced in Coalition legislation over the years – limits on multi-employer bargaining, on the right to strike, what can be bargained over in enterprise agreements, on union officials rights to enter workplaces and limits on the capacity of Fair Work Australia to settle intractable industrial disputes by mandatory arbitration.
The Work Choices model of a safety net of legislated minimum standards has been retained, as is much of the detail of the actual standards.
Individualised working conditions can be negotiated outside award/agreement terms under the Fair Work Act, subject to some protections.
There are key differences. The Fair Work Act has reinstituted a central role for awards at industry or occupational level.
And the bargaining system has been refocused around the right of workers to be represented. No longer is the employer able to completely refuse to bargain with an organisation or person who speaks for a majority of the workers.
Bargaining is governed by a new statutory principle requiring that the parties act in good faith. And as the Liberal Party has highlighted, the Fair Work Act has reinstituted the unfair dismissal jurisdiction largely gutted under Work Choices.
However, for every step in implementing its mandate to “rip up” Work Choices, the Government has hesitated and, in cases, quietly placed its foot back down on the ground.
Unlike New Zealand law, which requires parties to bargain in good faith and reach agreement (unless there’s a good reason for not doing so), the Fair Work Act places no equivalent obligation on employers.
In practice, the bargaining provisions of the Act appear to permit an employer to put a proposed agreement directly to their workforce for a binding vote, whether or not the workers’ representative agrees.
It is possible, then, that the Fair Work Act has created a system of collective agreement rather than one of collective bargaining.
Clear your desk. Or let’s talk
The unfair dismissal jurisdiction receives much press for the colourful decisions about hairdressers on Facebook and drunk employees at Christmas parties, but the reality is that the vast majority of cases are dealt with before going to be formally determined by Fair Work Australia.
Labor introduced the use of telephone conciliation, and many cases are dispensed with over the phone, on the papers.
This Government’s hesitation is clear in relation to the legislated standards. One example will suffice. The Fair Work Act introduces a statutory right to request a variation to working time for family purposes, which the employer may refuse on “reasonable business grounds”.
Unlike all the other National Employment Standards, an employee whose request is refused on unreasonable grounds cannot enforce their “right” by taking action in any court or before Fair Work Australia.
And in an early sign of the Government’s conservative social agenda, the “right to request” is limited to the care of pre-school children (or older children with a disability). An opportunity to humanise work for those caring for elders, spouses and others in non-traditional caring relationships was missed.
Where the power lies
In sum, there is much in the Fair Work Act which plays to the employer agenda now being re-expressed. Indeed, without the creation of very radical laws, in some areas it is difficult to see how the Coalition could outflank what the Government has done in this field. This is the political dilemma now faced by the Coalition.
The second question raised – on the impact of the Fair Work Act – cannot be answered in any definitive way.
Understanding the relationship between legal rules and the real world at micro- and macro-economic levels is a largely unexplored science.
For this reason, the Australian discourse about productivity and deregulation rarely moves beyond shadow boxing around stock shibboleths – “go away money”, kids working after school in hardware stores.
Perhaps future discussions and policies will be informed by strong empirical data and transparent public debate, but it looks like the spin cycle is starting all over again.