What is surprising about the Government's Workplace
Relations Amendment (Transition to Forward with Fairness) Bill
is that it contains relatively few surprises. It is broadly
consistent with the promises made by the Labor Party in the
lead up to last year's election and arguably goes no
further than the newly-appointed Government said that the first
round of reforms would go.
That being said, the changes introduced by the Bill are
significant and will require many employers to reconsider their
industrial relation strategy. These changes will continue to be
the subject of analysis as the Bill makes its way through
What is interesting to consider are the messages that the
Government has sent in this first attempt at industrial
relations reform. One clear message is that the unions will be
assured of a role in the industrial relations system. This role
had been diminished as a result of the WorkChoices reforms.
The role of the unions is entrenched more as a result of the
systems that the Government seeks to introduce, rather than the
direct conferral on the unions of a right of participation. The
abolition of Australian Workplace Agreements will stem the flow
of union members from collective agreements to AWAs.
In this context, the abolition of AWAs is more than an
ideological position. It could also address the perception that
AWAs have been at least partly responsible for declining union
membership since they were introduced in 1996.
The clear intention behind the Government's reforms
is to limit workplace bargaining to collective agreements. In
the context of unions involvement, the Bill does little to
change the status quo. However, in the ALP's
Forward with Fairness policy statement and policy
implementation plan there are clear signals that unions will be
empowered to insist on being a part of the collective
bargaining process if they have a member or members at the
workplace that will be covered by the agreement. We are likely
to see this change as part of the next round of reforms.
The re-introduction of awards as a key plank of the
'safety net' will also entrench the unions'
position. The Australian Industrial Relations Commission will
be responsible for conducting the award modernisation process.
In doing so, the Bill would require it to have regard to the
representation rights of unions. The AIRC would also be
expected to consult with any union, or other person that it
considers appropriate. Given that the AIRC has historically
placed unions at the heart of the industrial relations system,
it can be expected that the AIRC will consult with unions, and
employer organisations for that matter, as part of any award
At the same time, the Bill is not an overwhelming victory
for the union movement. For example, the Bill would not allow
for any new 'modernised' awards to contain provisions
allowing for union right of entry. This provision is consistent
with the ALP's pre-election policy.
However, it remains at odds with the position taken by the
ACTU Congress in October 2006. The attitude demonstrated by the
Government in its Bill suggests that there will be no changes
to the laws that severely limit the ability of the unions to
engage in industrial action, which again drew the ire of the
ACTU Congress. Secret ballots, for instance, remain in
Similarly, the Bill does nothing to change the prohibited
content provisions of the Workplace Relations Act, which also
found disfavour with the ACTU Congress.
The result is that the unions will continue to occupy a
principal role in Australian industrial relations, albeit with
different weapons in their arsenal. There is likely to be
exception taken by the union movement to the limitations placed
on them in respect of right of entry and industrial action. It
is entirely a matter for speculation as to whether the
Government will be able to withstand that pressure when the
further unravelling of WorkChoices takes place.
Even if it does, the limitations on the unions are unlikely
to cause them any practical detriment. The union movement,
perhaps more than the employers, has demonstrated an ability to
adapt the changes in the system and to devise proactive
strategies to retain a practical influence, even in the face of
the WorkChoices onslaught.
Employers need to be ready for a resurgence in the union
movement. The environment created by WorkChoices, which was in
many ways hostile to unions, has now changed. AWAs can no
longer be used as a means to 'de-unionise' a
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