The discussion so far of the implications of Howard’s IR Reforms in the media has missed most of the implications – the devil is in the detail. This is a very quick post as I have to pop out this afternoon but possible implications include:
(a) The legislation on unfair dismissal will have to be very tightly drafted to ensure that State laws don’t continue to operate for employees excluded from the provisions under s 109 of the constitution.
(b) In some ways there may be a couple of unintended outcomes from these changes – a possible increase in unionisation as people get scared, a backlash from Howard’s “battlers” and a return to some form of class politics. Given that there are arguably fairly rigorous protections against breach of contract in common law, there may be an increase in Law firms offering contingency deals for people wanting to sue employers who’ve sacked them – employers will scream – but hey – freedom of contract!
(c) It’ll stuff up people who are sacked when they apply for benefits. In order not to serve a long waiting period for benefits, you have to demonstrate to Centrelink that your leaving work was involuntary. The easiest way to do this is to show that you’ve contested a constructive dismissal in the Commission. Constructive dismissal means that you have been forced or bullied into resignation, or you have been demoted or disciplined without due cause, leading you to leave work. If you can’t easily legally challenge a dismissal, this will increase the pressure to resign so as not to impair your chances of gaining other employment, but that will stop you getting benefits immediately. I hope Centrelink and the job network are ready to deal.
(d) Downwards pressure on incomes at the bottom end of the labour market usually has an impact over time at the middle end as well.
(e) The assumption that highly skilled workers will not suffer is dubious because of the attack on pattern bargaining.
(f) The killer for those with easily replaceable skills is the removal of the no-disadvantage test against the relevant award for AWAs. Currently the award provides a floor under AWAs. Legislating four minimum employment conditions against which AWAs must be tested renders awards essentially meaningless if employers don’t want to observe them. Any award conditions can just be ommitted from an AWA and the people confronted with this will have very little bargaining power. This makes a nonsense of Howard’s claims that the award system will be preserved.
If you’re looking for an excellent resources page where you can do your own research on all this, go and visit Jim McDonald’s IR Policy site.
Elsewhere: There are a lot of posts on this, but vigorous discussion continues at Tim Dunlop’s, John Quiggin’s, Flutey’s and Catallaxy.
Update: Liam provides a reality check for the labour market economists at Cut Price Commentariat.
What about the wider consequences of such a massive change in work power relations? Hey baby your sacked. Shame. Nice legs.
What about the wider consequences of such a massive change in work power relations? Hey baby your sacked. Shame. Nice legs.
Absolutely, Chris. Women are already relatively disadvantaged in the labour market both in terms of access to high paying work and in terms of wage rates for “female” occupations where skill isn’t properly valued. The majority of employees on award only remuneration are women. This can only make things worse.
Absolutely, Chris. Women are already relatively disadvantaged in the labour market both in terms of access to high paying work and in terms of wage rates for “female” occupations where skill isn’t properly valued. The majority of employees on award only remuneration are women. This can only make things worse.
Yep, it doesn’t just bolster employers’ power in negotiations it shifts the power balance massively in day to day work relations.
Yep, it doesn’t just bolster employers’ power in negotiations it shifts the power balance massively in day to day work relations.
Well, the Libs keep saying that they will retain the remedy for UFD that is inherently a part of HREOC and the ADB’s workload – but the thing is that while you don’t need legal representation in the Commission, it is very ill-advised to lodge a discrimination case without some Legal Homies watching your back – and while lodging a claim in the Commission means that you’re protected from common law prosecution with relation to your claim, I’m not sure what the status is with HREOC – can an employee be sued for wrongful claim of discrimination?
At any rate, for the very vulnerable members of the working community, forking out for a lawyer is not an option. And the free industrial relations services are dwindling and dying – see trackback http://treeoftruth.blogspot.com/2005/05/working-womens-centre-is-closing.html
Well, the Libs keep saying that they will retain the remedy for UFD that is inherently a part of HREOC and the ADB’s workload – but the thing is that while you don’t need legal representation in the Commission, it is very ill-advised to lodge a discrimination case without some Legal Homies watching your back – and while lodging a claim in the Commission means that you’re protected from common law prosecution with relation to your claim, I’m not sure what the status is with HREOC – can an employee be sued for wrongful claim of discrimination?
At any rate, for the very vulnerable members of the working community, forking out for a lawyer is not an option. And the free industrial relations services are dwindling and dying – see trackback http://treeoftruth.blogspot.com/2005/05/working-womens-centre-is-closing.html
can an employee be sued for wrongful claim of discrimination?
I don’t think so. You could presumably be sued for defamation but you would have a defence of qualified privilege (ie you were making allegations in good faith to a properly constituted legal forum). It would be worth checking the relevant Act – it may also be that there is specific protection for employees bringing claims.
can an employee be sued for wrongful claim of discrimination?
I don’t think so. You could presumably be sued for defamation but you would have a defence of qualified privilege (ie you were making allegations in good faith to a properly constituted legal forum). It would be worth checking the relevant Act – it may also be that there is specific protection for employees bringing claims.
What Tim said at Road To Surfdom. I can’t understand this slavish bowing down before the “free market”.
A personal aside, here; one of my friends was wrongfully dismissed about a year ago (for a “personality” issue, ie, she didn’t get along very well with the boss). She worked in a small industry where gossip is rife and found it hard to get another job quickly, despite being very good, because of the ‘talk’ about her sacking. She managed to salvage her reputation only by taking the issue to arbitration with the threat of going to court — proving it wasn’t her fault, as it was, which demonstrated to potential new employers that she wasn’t the wicked witch her previous employer had insisted.
In a small industry, especially, being sacked without recourse to fighting the decision can render a person unemployable. It’s all to do with having a ‘name’ and a reuptation.
What Tim said at Road To Surfdom. I can’t understand this slavish bowing down before the “free market”.
A personal aside, here; one of my friends was wrongfully dismissed about a year ago (for a “personality” issue, ie, she didn’t get along very well with the boss). She worked in a small industry where gossip is rife and found it hard to get another job quickly, despite being very good, because of the ‘talk’ about her sacking. She managed to salvage her reputation only by taking the issue to arbitration with the threat of going to court — proving it wasn’t her fault, as it was, which demonstrated to potential new employers that she wasn’t the wicked witch her previous employer had insisted.
In a small industry, especially, being sacked without recourse to fighting the decision can render a person unemployable. It’s all to do with having a ‘name’ and a reuptation.
I understand, though, that workers will be able to be sued, individually, for striking outside ‘negotiation’ periods.
I understand, though, that workers will be able to be sued, individually, for striking outside ‘negotiation’ periods.
That’s already the case, Liam. I think they’ve just upped the penalties.
Kate’s point is a good one!
That’s already the case, Liam. I think they’ve just upped the penalties.
Kate’s point is a good one!
I wonder about this two tier set up based on what seems to me to be an arbitary figure of 100 employees (up from the touted 20). Too much whinging that it is unfair – why are some covered by certain protections and others not – then all the government has to do is extend it to everyone. They wish.
I wonder about this two tier set up based on what seems to me to be an arbitary figure of 100 employees (up from the touted 20). Too much whinging that it is unfair – why are some covered by certain protections and others not – then all the government has to do is extend it to everyone. They wish.
The interesting thing is that the literature in the business schools has workplace negotiations being at their optimal when they are done over the workplace as a whole NOT on an individual basis.
No surprise to see EBAs being of a much higher benefit to employers/employees than AWAs.
no surprise either that no employer at the Commision has been able to show the inherent ‘porductivity’ benefits of imposing AWAs.
The interesting thing is that the literature in the business schools has workplace negotiations being at their optimal when they are done over the workplace as a whole NOT on an individual basis.
No surprise to see EBAs being of a much higher benefit to employers/employees than AWAs.
no surprise either that no employer at the Commision has been able to show the inherent ‘porductivity’ benefits of imposing AWAs.
Regarding the blocking of the operation of the State unfair dismissal laws – is not too hard. Under the section of the constitution dealing with State/Federal law conflicts [s109] all the Feds have to do is show an intention to cover the field. If they said something like:
“In a constitutional corporation which employs more than 100 employees no employee shall have the right to bring unfair dismissal proceedings under Federal or State law.”
That would work in blocking out the operation of the State system. How we gonna make the workers rise “educate, agitate, organise”!
Regarding the blocking of the operation of the State unfair dismissal laws – is not too hard. Under the section of the constitution dealing with State/Federal law conflicts [s109] all the Feds have to do is show an intention to cover the field. If they said something like:
“In a constitutional corporation which employs more than 100 employees no employee shall have the right to bring unfair dismissal proceedings under Federal or State law.”
That would work in blocking out the operation of the State system. How we gonna make the workers rise “educate, agitate, organise”!
It may be a little more complex than that, Winstanley, according to some lawyers. See this comment. I’m sure the unions and the State governments will be seeking some good legal advice on this.
It may be a little more complex than that, Winstanley, according to some lawyers. See this comment. I’m sure the unions and the State governments will be seeking some good legal advice on this.
I have it on good authority that it can be attacked at the margins but in Victoria v. Commonwealth the High Court majority has already said that the ability to regulate terms and conditions of employment through the corporations power is essentially unlimited.
Geez I hope I am wrong!
I have it on good authority that it can be attacked at the margins but in Victoria v. Commonwealth the High Court majority has already said that the ability to regulate terms and conditions of employment through the corporations power is essentially unlimited.
Geez I hope I am wrong!
I can understand the reservations some have with enterprise bargains between individuals and their employer with regards the power of respective parties. There is no doubt that some employees miss out on their true market worth because of inferior bargaining skills compared to some of their workmates. Employers often have secrecy agreements for this very purpose. The solution would be to give every employee within an enterprise, free and open access to every individual’s AWA. Now there’s a thought for you leftys to chew on.
I can understand the reservations some have with enterprise bargains between individuals and their employer with regards the power of respective parties. There is no doubt that some employees miss out on their true market worth because of inferior bargaining skills compared to some of their workmates. Employers often have secrecy agreements for this very purpose. The solution would be to give every employee within an enterprise, free and open access to every individual’s AWA. Now there’s a thought for you leftys to chew on.
“In some ways there may be a couple of unintended outcomes from these changes – a possible increase in unionisation as people get scared”.
Then it will be very easy to check, won’t it? And if the flight from unions continues, then you’ll be wrong, won’t you?
Applying the precautionary principle to anything makes a nonsense of it.
“In some ways there may be a couple of unintended outcomes from these changes – a possible increase in unionisation as people get scared”.
Then it will be very easy to check, won’t it? And if the flight from unions continues, then you’ll be wrong, won’t you?
Applying the precautionary principle to anything makes a nonsense of it.
And another thing…
How many of you people actually work in unionised workplaces, negotiate awards and certified agreements/EBA’s, handle the reality of these conditions day to day, drive through picket lines over a person’s right or otherwise to join a union etc. Do you really know the first thing about “the detail”? Live it, breathe it, try to make it work every day?
I’m not discounting the need for a theoretical grasp of the system, but get out and try and make it work…
And another thing…
How many of you people actually work in unionised workplaces, negotiate awards and certified agreements/EBA’s, handle the reality of these conditions day to day, drive through picket lines over a person’s right or otherwise to join a union etc. Do you really know the first thing about “the detail”? Live it, breathe it, try to make it work every day?
I’m not discounting the need for a theoretical grasp of the system, but get out and try and make it work…
Tony, I’ve worked in HR/IR management and as an IR consultant off and on for many years. I’ve certainly been involved in negotiating agreements, variation of awards, negotiation of grievances, recruitment and selection, and other stuff. I’m not defending the current system as some sort of nirvana – although I will note that most of the inequities in it arise from the WRA Act. There is room for sensible reform. However, what we are getting is not that – it’s ideologically driven.
Tony, I’ve worked in HR/IR management and as an IR consultant off and on for many years. I’ve certainly been involved in negotiating agreements, variation of awards, negotiation of grievances, recruitment and selection, and other stuff. I’m not defending the current system as some sort of nirvana – although I will note that most of the inequities in it arise from the WRA Act. There is room for sensible reform. However, what we are getting is not that – it’s ideologically driven.
And in case it’s relevant, I’ve worked in the private as well as the public sector.
And in case it’s relevant, I’ve worked in the private as well as the public sector.
Mark, excuse my ignorance, but what’s pattern bargaining?
Mark, excuse my ignorance, but what’s pattern bargaining?
“ideologically driven. ” Which of course Bill Shorten & Greg Combet aren’t.
Mark, I’m talking experience at what one might call the sharp end – intepreting an overtime clause over the phone at 0200 on a Sunday morning in the rain, with the shop steward shouting in your other ear.
“most of the inequities in it arise from the WRA Act” – you must be kidding. I’ve sat in a Commission hearing over demarcation disputes before the WRA Act was a twinkle in anyones eye, and I’m telling you, the inequities started a LONG time before that.
“It may be a little more complex than that, Winstanley, according to some lawyers. See this comment. I?Äôm sure the unions and the State governments will be seeking some good legal advice on this.” My point exactly – as soon as you bring the lawyers into the employment relationship, you’ve lost, we’ve lost, everyone’s lost.
Call me an idealist, but having worked in unionised, partly unionised and “all staff” workforces, I know who’s enjoying better conditions, better employee/employer relationships, better pay and more leverage over their lifestyle. I’ll generally go with the evidence of my eyes.
“sensible reform” – Maybe it’s just the difference between a coffee house discussion and a crib room card game.
Homer – get yourself a job in the real world and have a look at how it works or doesn’t. Kate – you got one version from your friend. Maybe, just maybe, there might be a little more to it. I’ve also spent some time on the other side of an arbitrators bench on an unfair dismissal hearing – and, let me tell you, there was nothing unfair about it.
“ideologically driven. ” Which of course Bill Shorten & Greg Combet aren’t.
Mark, I’m talking experience at what one might call the sharp end – intepreting an overtime clause over the phone at 0200 on a Sunday morning in the rain, with the shop steward shouting in your other ear.
“most of the inequities in it arise from the WRA Act” – you must be kidding. I’ve sat in a Commission hearing over demarcation disputes before the WRA Act was a twinkle in anyones eye, and I’m telling you, the inequities started a LONG time before that.
“It may be a little more complex than that, Winstanley, according to some lawyers. See this comment. I?Äôm sure the unions and the State governments will be seeking some good legal advice on this.” My point exactly – as soon as you bring the lawyers into the employment relationship, you’ve lost, we’ve lost, everyone’s lost.
Call me an idealist, but having worked in unionised, partly unionised and “all staff” workforces, I know who’s enjoying better conditions, better employee/employer relationships, better pay and more leverage over their lifestyle. I’ll generally go with the evidence of my eyes.
“sensible reform” – Maybe it’s just the difference between a coffee house discussion and a crib room card game.
Homer – get yourself a job in the real world and have a look at how it works or doesn’t. Kate – you got one version from your friend. Maybe, just maybe, there might be a little more to it. I’ve also spent some time on the other side of an arbitrators bench on an unfair dismissal hearing – and, let me tell you, there was nothing unfair about it.
Mark, I?Äôm talking experience at what one might call the sharp end – intepreting an overtime clause over the phone at 0200 on a Sunday morning in the rain, with the shop steward shouting in your other ear.
Tony, what is this – a chest thumping exercise about whose experience is more at the “sharp end”?
I’m sure since Mark has worked in this area he’s been involved in tough negotiations. Whether or not they take place at 2am on Sunday in the rain is not relevant.
The bigger point is that all of us (I imagine) are or have been in the workforce – we’ve all had experience as an employee and some as an employer, and we’ve all had to negotiate power relations at work and been affected by IR laws.
I’ve worked on both sides of the fence – as an employee and as a small business owner. And I’ve worked as an independent contractor.
These non-award employees you’re talking about are probably highly skilled workers or workers in an industry that pays high wages generally. Life ain’t so grand for labourers or cleaners, or for people in the hospitality and retail industries (the fastest growing areas of employment) who in many cases depend on things like penalty payments for a decent if frugal income. And very few employees in smaller retail or hospitality businesses get anything but award conditions at the moment.
And we’re all citizens and have a right to have a say.
I’d back up Kate’s point – I know of people in the industry I work in (also a fairly small one) who’ve had similar experiences.
Mark, I?Äôm talking experience at what one might call the sharp end – intepreting an overtime clause over the phone at 0200 on a Sunday morning in the rain, with the shop steward shouting in your other ear.
Tony, what is this – a chest thumping exercise about whose experience is more at the “sharp end”?
I’m sure since Mark has worked in this area he’s been involved in tough negotiations. Whether or not they take place at 2am on Sunday in the rain is not relevant.
The bigger point is that all of us (I imagine) are or have been in the workforce – we’ve all had experience as an employee and some as an employer, and we’ve all had to negotiate power relations at work and been affected by IR laws.
I’ve worked on both sides of the fence – as an employee and as a small business owner. And I’ve worked as an independent contractor.
These non-award employees you’re talking about are probably highly skilled workers or workers in an industry that pays high wages generally. Life ain’t so grand for labourers or cleaners, or for people in the hospitality and retail industries (the fastest growing areas of employment) who in many cases depend on things like penalty payments for a decent if frugal income. And very few employees in smaller retail or hospitality businesses get anything but award conditions at the moment.
And we’re all citizens and have a right to have a say.
I’d back up Kate’s point – I know of people in the industry I work in (also a fairly small one) who’ve had similar experiences.
What Kim said.
Robert, pattern bargaining refers to when a union seeks to strike identical certified agreements with all employers in an industry or presents identical claims to all employers in an industry as a baseline for negotiations. This is held to be contrary to the intent of enterprise bargaining which is supposed to tailor conditions and wages to each specific workplace.
It’s very common in manufacturing, construction and higher education.
What Kim said.
Robert, pattern bargaining refers to when a union seeks to strike identical certified agreements with all employers in an industry or presents identical claims to all employers in an industry as a baseline for negotiations. This is held to be contrary to the intent of enterprise bargaining which is supposed to tailor conditions and wages to each specific workplace.
It’s very common in manufacturing, construction and higher education.
Sorry, Mark – Kim’s right, tub thumping pretty much describes it (or chest beating). I plead Commenting Under The Influence, and a week negotiating rosters with a multi-status workforce (all very highly paid, Kim, you judge correctly). No excuse – my apologies.
Sorry, Mark – Kim’s right, tub thumping pretty much describes it (or chest beating). I plead Commenting Under The Influence, and a week negotiating rosters with a multi-status workforce (all very highly paid, Kim, you judge correctly). No excuse – my apologies.
No probs, Tony – I know all about commenting under the influence and overwork!
No probs, Tony – I know all about commenting under the influence and overwork!