With the threat of further industrial action at Qantas looming and Victorian nurses continuing with their rolling work bans, you could be forgiven for thinking that Australia has entered a new phase of high-profile conflict between unions and employers.
These actions have been shadowed by calls from both unions and business groups for reform of Australia’s industrial relations regime, which for past 20 years has been mostly centred on enterprise bargaining.
The introduction of enterprise bargaining was highly controversial at the time, and followed a protracted public debate about the value of dismantling compulsory arbitration.
The prevailing view was that arbitration undermined competitiveness and prevented businesses from using innovative work arrangements that could improve productivity.
Many employer associations played a crucial role in these debates and were strong advocates of enterprise bargaining. Principal among them was the Business Council of Australia. In 1989, it published a highly influential report, entitled Enterprise Bargaining A Better Way of Working, which set the blueprint for what followed.
Since then, enterprise bargaining has grown and has displaced arbitration and awards as the cornerstone of our system of industrial regulation. The legal framework has evolved to accommodate enterprise bargaining – and now we have “good faith bargaining” as a core principle on which enterprise bargaining is to take place.
Despite the fact that we now we have a full-blown system of enterprise bargaining, it is not clear that parties have yet worked out how best to play the game. This is reflected in the events of the last few weeks.
The Qantas dispute showed how enterprise bargaining might involve “hard bargaining” and have consequences beyond the parties involved. Because of these consequences, however, enterprise bargaining has been terminated and negotiations continue under the watchful eye of Fair Work Australia (FWA), with no apparent prospect of avoiding arbitration.
In Victoria, after conceding substantial wage increase to the Police Association, the Baillieu Government has decided to play catch-up using hardball tactics against nurses, teachers and public servants.
They have opted for essentially the same approach as Alan Joyce and the Qantas management team.
Work bans imposed by nurses threatened to close significant numbers of hospital beds. On grounds of public safety, the Victorian government asked FWA to terminate their “protected industrial action”. Whilst this application was not granted, FWA agreed to suspend industrial action until the parties take time to work through their differences.
Neither side appears willing to give ground. The nurses, having stared down an FWA directive over the weekend, have vowed to ignore FWA and continue with their work bans, while the government insists it won’t concede to union demands.
The Victorian government also asked FWA to intervene once again to prevent public servants imposing their own work bans.
Here work bans imposed by child protection workers were claimed to potentially threaten to public safety – potential grounds under the Fair Work Act for FWA to step in and terminate or suspend the period of protected industrial action.
As in the Qantas dispute, this would trigger an end to the trench warfare that appeared to be unfolding, and involved FWA overseeing negotiation and, if needed, compulsory arbitration. Over the weekend, the workers suspended the bans in return for a fresh round of talks.
Underpinning the industrial tactics deployed by unions and employers in all these cases are a number of shared features.
To begin with, it is worth noting that all three cases are from outside the “rough and tumble” of traditional hotspots for industrial disruption – manufacturing and building and construction. Some of the disputants are “seasoned campaigners” to be sure, but these cases are noteworthy in that they all involve highly skilled, professional workers – pilots, nurses, and other caring professions.
Nor are these disputes happening in workplaces where the effects of any industrial action are contained or unlikely to have effect on the public. This is not like a small auto component manufacturer, where a protected strike action might stall or disrupt production, but have almost no direct effect on the consuming public.
They all involve services that are produced at the point of consumption, so the consequences for the public are immediate, and impact a lot of people.
None of them involve the parties contravening the “good faith bargaining” provisions of the Act, which many critics had been particularly concerned about prior to the Fair Work Act taking effect.
What is perhaps most striking about these disputes, is that none of them have involved a traditional campaign of strike action. Instead the unions have opted for industrial tactics designed to minimise the cost of the action to their members, but which maximise the potential damage to the employer.
Work bans and rolling stoppages appear to be the order of the day. And these tactics appear, on the face of it, difficult for employers to counter effectively.
Lockouts – the main industrial weapon for employers – are hardly the answer. Like strikes when they are used in service industries, they only serve to annoy the public. Even if a lockout had the desired effect of bringing a union back to the bargaining table, employers still run the risk of losing the public relations battle for employers. It would certainly undermine claims that their primary concern was pateients or consumers.
Unexpectedly, these disputes appear to signal a return to compulsory arbitration. Ironically, employers have found support in the very institution they had, just a few years earlier, sought to extinguish – the industrial tribunal.
This might very well be a case of “careful what you wish for”. Enterprise bargaining is, by its nature, a “robust” game – and at times a war of attrition. But the events of the last few weeks at least highlight that an industrial umpire is an essential part of the system. What other sport would do without one?