Australian Institute of Employment Rights

On 22 June, The Australian Institute of Employment Rights presented the inaugural Ron McCallum Debate on the theme ‘Justice at Work’.  Featuring a keynote speech by former High Court judge, The Hon Michael Kirby and chaired by Jana Wendt, an audience of over 250 people gathered to recognise the contribution of Emeritus Professor Ron McCallum to our system of industrial relations and labour law and to debate the topic Justice at Work: Have we achieved it? Can the system deliver it?

In his keynote address, Justice Kirby reflected on the three key aspects of Professor McCallum’s life and work; as a teacher both by instruction and by the examples he has set; as an instructor of the judiciary; and in the latest phase of Professor McCallum’s work, as a Chair of the UN Committee for the Convention for Persons with Disabilities, as a pioneer in a new field of international law, and as anadvocate for a more efficient and effective United National human rights system.

When referring to his role as an instructor for the judiciary, Justice Kirby was keen to point out that it was Professor McCallum along with then Victorian Solicitor General Pamela Tate SC that had “led him astray” in the High Court WorkChoices case (NSW & Others v. Commonwealth [2006] 52).  He referred to Professor McCallum’s submissions on the impact of the move from using the Constitution’s conciliation and arbitration power to utilising the corporations power as the “tipping point” of his own departure from the majority of the Court.

Specifically in the submission referred to, Professor McCallum had made reference to the concern that:

“Laws based upon the corporations power [alone] will be centred around corporations to the detriment of flesh and blood persons who interact with corporation.”

and that

“General labour laws of broad application which would be required to found a national labour regime, which were enacted in reliance upon the corporations power could not for long maintain [the] balance between employers and employees. In the fullness of time, these labour laws will become little more than a sub-set of corporations law because inevitably they will fasten upon the economic needs of corporations and their employees will be viewed as but one aspect of the productive process in our globalised economy.”

Justice Kirby recited this passage from his dissenting judgment, encouraging those in the audience to consider the need for the system to maintain a focus on flesh and blood persons as part of the debate around Justice at Work.

Professor McCallum gave a stirring reply to the remarks of Justice Kirby noting how thrilled he was that the AIER had decided to title this event in perpetuity The Ron McCallum Debate.  The detail of this reply is available here.

In what was at sometimes a fiery debate, esteemed journalist Jana Wendt chaired a Q & A style debate between a number of Australia’s leading labour lawyers, barristers, academics and practitioners, including former Justice Paul Munro, Warren Friend SC, Mark Perica (CPSU-SPSF), Professor Joellen Riley, Justine Turnbull (Freehills), Jennifer Hunt (Manpower) and Alison Peters (NCOSS).

Debate panelists were asked their views around a range of topics (some coming directly from the audience) including:

  • What does justice look like?
  • Does the federal system promote access to justice for employers and workers pursuing their workplace rights?
  • Where is the balance between the economic interests of employers and the rights of workers and their representatives?
  • What has been the impact of the loss of the system of compulsoryconciliation and arbitration and the reliance on corporations power?
  • Does the federal system comply with international labour law and human rights standards?
  • What is the system doing to promote a cultural shift towards cooperation, partnership and good faith relationships?
  • Does the system provide enough opportunity for the economically and socially disadvantaged?
  • Is there enough protection for insecure and impermanent workforce?
  • How are issues such as pay inequalities being dealt with?
  • Is there an appropriate balance in the law between the legitimate rights of employers to control their workplaces and the privacy rights of individual workers?

Click here to view the testimonials to Ron McCallum and click here to see the Debate in its entirety.

The Inaugural Ron McCallum debate kicked of a new major piece of work by AIER around the theme Justice at Work.  This new project will see AIER present a series of public discussion and roundtable forums over the next twelve months around the theme Justice at Work, culminating in the publishing of a comprehensive discussion paper.  In order to encourage community dialogue on this issue, AIER has taken the unusual step of releasing its internal briefing notes used to prepare for the Ron McCallum Debate to the wider public. Click here to access the briefing notes.  AIER will be releasing information on the next steps of its Justice at Work project in the forthcoming months.

In this article Sean Reidy, a workplace law barrister and member of AIER’s Executive Committee, argues that the recent move by the NSW Government to cap wages of public sector employees by policy strips employees of their rights to bargain collectively and in good faith, as outlined by the Australian Charter of Employment Rights.

State governments in South Australia, Tasmania, Victoria, Queensland and New South Wales have policies to cap public sector wage increases at 2.5%. In June, the New South Wales Government legislated to require that the NSW Industrial Relations Commission give effect to the capping policy in decisions to approve enterprise agreements. The notion of capping wages of public sector employees by policy does not comply with the Australian Charter of Employment Rights.

Governments are in a unique position of power in the bargaining relationship. As a bargaining party they have, among other advantages, the superior advantage of significant resources and of being able to legislate their bargaining position. Other employers do not have this advantage.

Developed in 2005 by the Australian Institute of Employment Rights (AIER), The Australian Charter of Employment Rights is a simply expressed document that unravels the complexity of the regulation of workplace relations by defining and clearly articulating the rights of employers and workers in modern workplaces.  The collaborative effort of seventeen of Australia’s leading industrial relations practitioners, lawyers and economists, the Charter draws upon international as well as uniquely Australian sources to identify the ten fundamental principles on which fair and balanced workplace laws and workplace relationships should be based, and to create a set of rights and obligations which all workplaces are encouraged to adopt and observe.

The Charter obliges parties to perform their obligations in good faith (Charter Right 1). The Charter also obliges parties to conduct bargaining in good faith (Charter Right 9). These rights are founded on the idea of a ’fair go all around‘. Governments should set out to be model bargaining parties. A ’fair go all round‘ requires that governments do not tilt the negotiating balance in their favour.

The use of the superior advantage to achieve a policy position risks not only being unfair to the employees on the other side of the bargaining table, but also unfair to private sector employers who do not enjoy the same advantages. The policy of capping and its corollary, the ‘one size fits all‘ approach, is inconsistent with the Charter obligation to bargain in good faith.  It means in practice that no matter what merit the other bargaining party can demonstrate, this will not be properly recognised. If this is accompanied by fettering the ability of the independent tribunal to determine an outcome through conciliation or arbitration, the right to access effective dispute resolution procedures (Charter Right 10) is also restricted.

There has been a tendency to announce these policies in budget papers and statements. Finding the content of the policy is made difficult. New South Wales has been the exception. Its policy is set out in a policy document.  Governments should be open about these policies, articulate the terms clearly and provide the other bargaining parties with all information relevant to the policy and its terms. Anything less is a failure to bargain in good faith according to the Charter standard.

Even though not often clearly stated, there is generally provision under the policy to “increase employee related costs by more than 2.5%… only if sufficient employee related costs savings have been achieved to fully offset the employee related costs”, to adopt the language of the New South Wales policy.

This type of approach has been applied in the negotiation of the Health Practitioners’ (Queensland Health) Certified Agreement (No. 2) 2011 that is currently under ballot. The government offered a further .5% on a “cost neutral”basis plus a “one-off contingent payment of $500” payable at the end of the agreement provided that certain productivity savings are achieved. The .5% is “cost neutral” because the agreement will give the government savings that are “at least equal” to the .5%.

This sort of limited proviso does not ameliorate the problems of capping. The proviso is itself a form of capping. It restricts the agenda items to those determined by the government party. There is no room left to engage in the dialogue of enterprise bargaining, such as a dialogue about a CPI increase of 3.6% in the year to June 2011 or interest rate rises of 0.75% since March 2010 (as at 3 May 2011, according to RBA figures).

The Full Bench of the Queensland Industrial Relations Commission’s observations in Queensland Police Service v. Queensland Police Union of Employees and Queensland Police Commissioned Officers’ Union of Employees CA/2010/12, 11 August 2011, align with the Charter’s approach to collective bargaining. The Full Bench expressed concern about the ’one size fits all‘ government offer to public sector employees. The Full Bench said at [221] – [224]:

“We are curious as to how a fixed offer can be made by the Government to its workforce without any apparent and obvious consideration being given to the type of industry under consideration… We are unsure of what consideration has been given to the fact that, within the public sector, employees often engage in a range of diverse activities. Further, in offering a fixed wage offer, there appears to be little consideration given to the fact that each bargaining party may have, and usually do have, a different set of claims to be considered … It is up to the parties negotiating with the State Government as to whether they agree to accept a fixed wages offer. However, if an enterprise bargaining negotiation has not been resolved between parties and a s.149 application is made, the requirement is that the Commission adhere to the requirements of the Act and particularly the statutory direction to act with equity, good conscience and the substantial merits of the case.”

This passage neatly summarises why a government-capped wages policy is contrary to the Charter. The language of equity and good conscience is the language of a ‘fair go all round’. The right to bargain collectively must be an effective right. The Charter sets out a scheme that seeks to make that right effective.

The right to bargain collectively cannot be effective when one party bargains by reference to a policy. It negates the opportunity for a “meeting of the minds” or “mutual enlightenment” that is central to the process of true bargaining (see Howe, J 2009, Australian Standard of Employment Rights, Hardie Grant Books, Melbourne p. 102 and Isaac, JE 1958, ‘The Prospects for Collective Bargaining in Australia‘, The Economic Record, vol. 34 (69)).

When the scheme envisaged by the Charter is altered, the balance that the Charter Right seeks to achieve is detrimentally impacted and the right loses its utility.

Charter Right 9 provides that the parties will have access to an independent conciliation and arbitration system to resolve roadblocks in reaching agreement. Charter Right 10 re-inforces the importance of the independent tribunal in the resolution of disputes in the industrial sphere. The recourse to an independent system to assist the parties to arrive at an outcome, or arbitrate a result if all else fails, makes the right effective for both parties to the negotiation. Legislating to fetter the ability of the independent system except according to applying one side’s policy reduces the efficacy of these Charter Rights.

As the full bench notes, employees and employers (the bargaining parties) negotiate in a particular environment on each occasion, seeking to advance the relevant claims of each against the background of a diversity of occupations and business activities. Restricting the capacity of one party or the other to effectively operate in that environment restricts the right to bargain collectively. Assessed against the Charter, capped wage increase policies are inconsistent with being a model bargaining party.

Sean Reidy

Sean Reidy is a barrister in private practice and a member of the AIER Executive Committee. He appeared for the Queensland Police Commissioned Officers’ Union of Employees in the Queensland Police Service case. The views expressed are those of the author and have not been endorsed by AIER.

On 6 August 2011, Federal Court Justice Mordy Bromberg launched WorkRight, a multi-facetedteaching and learning package about workplace rights for young adults in Australia. Highlighting the importance of the resource to both teachers, students, and the future of Australian workplaces, Justice Bromberg reflected on both its comprehensive nature and also the simplicity with which it deals with complex industrial relations dilemmas.

WorkRight is the result of a three-year collaboration between the Teacher Learning Network (TLN) and the Australian Institute of Employment Rights (AIER).Recognising the urgent need to raise awareness about workplace rights and responsibilities amongst those entering the workforce for the first time, TLN and AIER have brought together classroom practitioners with some of Australia’s leading industrial relations experts. The result is a comprehensive package of resources that support teaching and learning about workplace rights and responsibilities.

The brief for this project was to develop a rich and comprehensive resource that would help young people understand, appreciate and be able to manage workplace culture and their rights and responsibilities in the workplace.

The package contains:

  • A Curriculum Resource (containing more than 70 rich classroom activities)
  • A teacher resource (a 36 page booklet written specifically for teachers to provide them with critical knowledge to support their teaching)
  • A student resource with critical information and contact details for support organisations
  • A website exploring web 2.0 applications (www.teachworkright.com)
  • iPad applications for teachers
  • Smartphone applications for students (iPhone application available now)

The WorkRight resource is built around ten workplace themes:

  1. Everyone should have a fair go at work
  2. Everyone has a right to be treated with dignity
  3. Discrimination and harassment are against the law!
  4. Everyone has a right to a safe and healthy workplace
  5. Everyone should get a say about the things that affect them
  6. You should always be able to ask someone to speak on your behalf
  7. No one should be asked to leave without a fair reason
  8. Everyone is entitled to fair basic conditions
  9. You (or your representative) should be allowed to bargain for a fairer deal
  10. Disputes should be resolved quickly and fairly

The themes evolved from a conversation with a group of students at a suburban high school around workplace rights, their inquiry supported by AIER’s resource the Australian Charter of Employment Rights. The question was put to the students, ‘What does a good workplace look like’? Their insightful responses form the backbone of the entire package.

Anyone interested in finding better ways to communicate about relationships at work and the rights and responsibilities of employers and workers is encouraged to explore this rich resource.

The WorkRight resource is available in the following ways:

ONLINE

http://www.teachworkright.com The WorkRight website features a free download of the complete resource, including Teacher and Student manuals, and a complete Curriculum Resource. A WorkRight iPad application is also available.

PRE-PRINTED

A full colour printed version of the WorkRight Curriculum Resource manual is available for purchase from TLN. The price is $50.00 and includes postage and handling. To order a copy go to the TLN website [www.tln.org.au] or telephone 03 9418 4992.

iPHONE APPLICATION

WorkRight: Why not download the iPhone application, WorkRight, and test yourself against the clock, your colleagues or your kids to see who can answer the quiz the quickest?

Feedback on the package will be gratefully received via the AIER  [www.aierights.com.au] or TLN  [www.tln.org.au] websites.

The International Labor Organization recently released a new report detailing how freedom of association fosters and supports economic and social development.  Entitled Freedom of Association and Development, the report identifies the ways in which strong independent worker and employer organisations contribute to the conditions that underpin economic progress.

Freedom of association is the cornerstone of the ILO’s approach to development through decent work; namely ensuring that all men and women have the ability to obtain decent and productive work in conditions of freedom, equity, security and human dignity. Freedom of association refers to the right of workers and employers to create and join organisations of their choice freely and without fear of reprisal or interference.  This includes the right to establish and affiliate to confederations and international organisations.  Linked to the freedom of association is the right to collective bargaining.

The Freedom of Association report includes a variety of case studies ranging from organising the informal economy in Ghana and India, the development of industrial relations through partnership between employers and unions in the Turkish metal sector, to the role of unions in promoting democratic transition in Poland.  The report also identifies the internal and external challenges for governments, worker and employer organisations in promoting freedom of association.

Whilst the report is written from a development context, the principles and findings about how freedom of association benefits business and the community are just as applicable in developed economies.

In particular the report emphasises the benefits of promoting freedom of association to business, as respect for these principles within the workplace can result in positive results in the following areas:

  • economic competitiveness
  • dispute resolution
  • skills development
  • change management
  • promoting cooperation in times of crisis and assisting in responsible restructuring.

The report also discusses the important role that genuine tripartite interaction has on the economic development of a country.  It concludes by outlining detailed roles for government, unions and employer representatives in promoting and realising the benefits of freedom of association.

This report provides a comprehensive, easy-to-read overview of the foundations of freedom of association, and illuminates why it  is a key feature of our system in Australia.

For those wanting to explore in more detail how to create an environment supportive of freedom of association in your organisation, AIER’s Australian Charter of Employment Rights and its accompanying Standard of Employment Rights, is a useful framework.

If you would like to discuss in more detail how to realise the Charter principles in your organisation, contact AIER Executive Director Lisa Heap.

The Australian Institute of Employment Rights (AIER) collaborated with the Teacher Learning Network (TLN) to produce WorkRight, an innovative curriculum resource for teaching about workplace rights and responsibilities.

Commissioned by the Victorian Government the resource is designed and written to be used by all teachers working with students in Year 10 or at Levels 5 and 6 of VELS.  The package has a comprehensive, carefully sequenced and practical set of activities designed for all teachers to use across the curriculum, as well as extensive resources and references for referral to augment the knowledge and skill base of teachers.

WorkRight is centred on ten themes that young people themselves have identified as critical areas for ensuring a ‘fair go for all’ in the workplace.

These ten themes are:

  1. Everyone should have a fair go at work
  2. Everyone has a right to be treated with dignity
  3. Discrimination and harassment are against the law
  4. Everyone has a right to a safe and healthy workplace
  5. Everyone should get a say about the things that affect them
  6. You should always be able to ask someone to speak on your behalf
  7. No one should be asked to leave without a fair reason
  8. Everyone is entitled to fair basic conditions
  9. You (or your) representative should be allowed to bargain for a fairer deal
  10. Disputes should be resolved quickly and fairly

WorkRight includes a comprehensive curriculum resource, a teacher reference resource, and a student take home resource.  Web 2.0 applications including dedicated website,  I-Pad Teacher Resource app and I-Phone/Smartphone student apps will be available early August 2011.

Colour print quality copies of the resources are available on order from the Teacher Learning Network (TLN) 03 9418 4992 or www.tln.org.au

Employees should be told of the conditions of their employment. It is implicit in the notion of an agreement to employ that the parties both know exactly what they are agreeing about. However, the right of the employee to be provided with access to employment conditions prior to, or on commencement of, employment remains uncertain. Recent changes to the law have improved the right of employees to access to their terms of their employment but gaps remain that should be addressed. Continue reading “The Right to Know: Employees and Their Conditions of Employment” »

The Australian Institute of Employment Rights, the Centre for Employment & Labour Relations Law and Ridgeline HR invite you to attend a seminar to discuss how to create workplaces free from discrimination and harassment.

DATE AND TIME: Tuesday 17 May, 2011: 9.30am – 11.30am
VENUE:  Room 106, Level 1, Law School, Melbourne University, 185 Pelham Street, Carlton

Continue reading “SEMINAR: Bullying and Harassment – Culture, Practice and Compliance” »

Last month the United Nations released a much-anticipated set of Guiding Principles for Business and Human Rights.   The Guiding Principles seek to provide for the first time an authoritative global standard for preventing and addressing the risk of adverse human rights (including labour rights) impacts linked to business activity. Continue reading “Protect, Respect and Remedy: Setting a Global Standard for Business and Human Rights” »

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