Union leaders are starting to flex their muscles, but are they working in “good faith”?
THE Rudd Government is moving quickly and with determination to build a new workplace relations system.
Its current areas of activity include award modernisation and the new national employment standards and the next phase is its substantive workplace relations legislation which is being shaped under challenging circumstances.
For example, some senior union officials are making it very clear they want a return to the days of pattern bargaining, CPI wage adjustments, and access to arbitration.
Inflation is on the rise and wages are drifting up. Some major bargaining rounds are coming up.
All of this points to considerable risk if we get the shape or details of the new workplace relations system wrong and some critical areas are yet to be resolved.
Under Labor policy, the support of the majority of employees will trigger good faith bargaining obligations, but a majority of what?
Which group/s of employees will be included when assessing whether there is majority support for a collective agreement?
Will blue-collar unions be able to gain bargaining rights for admin and sales staff if they can gain the support of the majority overall?
The Government says good faith bargaining obligations will not require the parties to make concessions. Labor’s policy is to allow arbitration if “protracted industrial action” is occurring and if the industrial action is “causing significant harm to the bargaining parties”.
But how will Fair Work Australia assess whether significant harm is occurring?
The views of the parties should be the key test. If a party does not agree it is being significantly harmed, Fair Work Australia would find it extremely difficult to reach a different conclusion.
A bargaining claim pursued at one workplace may be of such importance to the overall operations of the company that even a very lengthy and costly strike at the workplace could not be validly held to have significantly harmed the company.
Far more harm may be caused to the company by conceding the claim. Compulsory arbitration should only be available where the interests of the community outweigh the interests of the bargaining parties.
During bargaining, other key questions arise, including what claims can be pursued with industrial action and what matters can be included in a workplace agreement?
Ai Group’s position is that the same boundary should apply to both. The appropriate boundary is the Electrolux principle — named after a 2004 decision of the High Court, in the Electrolux case, which Ai Group pursued and funded to preserve the integrity of Australia’s bargaining system. The principle is essentially that bargaining claims and agreement content must relate to matters which pertain to the relationship between the employer and the employees.
The Electrolux principle is an important one because unless bargaining rights are limited to matters pertaining to the employment relationship unions will be able to take industrial action during bargaining in pursuit of a wide range of political, social, academic, managerial and other matters that do not relate to the employment relationship.
Unions would be able to pursue claims that benefit them, rather than the members they represent.
At the end of the day a practical and reasonable boundary needs to be set so that all parties get a fair go during the bargaining process. The Electrolux principle sets a practical and reasonable boundary.
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