Here’s the summary: it’s unions aside and a wobbly floor for all

October 12, 2005

Date: 12 October 2005
Author: Sydney Morning Herald 

Employees will be more isolated and their jobs less secure under the proposals, writes David Chin.

ASPECTS of the Federal Government’s industrial relations plan conjure the memory of men in balaclavas with guard dogs patrolling the waterfront. Public support for the wharfies during the 1998 Patrick Stevedores dispute was consolidated by a maritime union court victory preventing the employer from effectively shedding its entire unionised workforce. This victory was made possible, in part, because Patrick was required to prove that it did not threaten to dismiss its employees on the basis that they were union members. It failed to do so.

The Government now proposes to abolish this onus of proof in applications to prevent breaches of freedom of association principles, making it difficult to obtain interim court orders to stop another Patrick-style corporate restructure.

Compromising job security and isolating employees are threads running through the reform proposals. We now learn that all workers, even those employed by employers with more than 100 employees, will be unable to get relief from unfair dismissal when they are dismissed on grounds that include “the operational requirements” of the employer’s business. That is, employees who are dismissed for arbitrary and invalid reasons based on their conduct will be excluded from taking unfair dismissal proceedings provided the employer can show that at least one other reason for dismissal was the operational requirements of the business.

The Government also plans to make it harder to successfully sue for unfair dismissal when employees are forced out of employment, by placing the burden on them to prove that they were constructively dismissed (or forced to resign).

Nowhere is the drive for employee isolation more apparent than in the proposals for individual employment contracts, awards and union negotiated agreements. The key is abolishing the no disadvantage test for workplace agreements. The test is meant to ensure that workplace agreements cannot reduce overall terms and conditions compared with an award. The political compromise that linked workplace agreements to the “no disadvantage test” might have been regarded as an effort to foster a new culture in the workplace rather than an attempt to gain quick profits by cutting labour costs. But the Government now intends to allow workplace agreements to descend below the overall floor of minimum conditions enshrined in awards. In the Government’s own words, workplace agreements “need simply set out how the new agreement will either change or remove [allowances, penalty rates, shift/overtime loadings, rest breaks, etc] in that agreement”.

Employers and employees have always had the freedom to bargain individually above minimum award conditions. Workplace agreements that are tied to the no disadvantage test even allow them to bargain below some award conditions. The abolition of the no disadvantage test adds nothing more than the “freedom” of some employers to present employees with terms that are wholly inferior to employment benefits that have been independently determined as fair and reasonable.

We are told this will be good for the economy because the key to greater productivity is to trust individual employees and employers to bargain directly. But if this was the case, why does the Government insist on making it an offence punishable by a fine of up to $33,000 for those individuals to agree on matters such as restricting the use of contractors, requiring some involvement by an employee’s union in dispute resolution, providing for a remedy for unfair dismissal and providing for some trade union training or paid union meetings?

The Government’s 67-page summary of how it will “simplify” the industrial relations systems shows rather more interest in restricting trade union activity for its own sake and diminishing minimum employee rights, at the cost of what is likely to be very complex legislation.

David Chin is a barrister specialising in employment law.



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