Australian Institute of Employment Rights (AIER) Advisory Committee member Dr Anthony Forsyth evaluates the Australian Council of Trade Union’s (ACTU) report ‘A Fair Go At Work’, which outlines the peak union body’s proposals for enshrining collective bargaining rights for Australian workers.

Last week, ACTU Secretary Greg Combet released ‘A Fair Go at Work’, a report outlining the peak union body’s proposals for enshrining collective bargaining rights for Australian workers. Since then, the Howard Government and business groups have been busy portraying the ACTU plan as a return to the “dark ages” of industrial regulation. They have also attacked the Australian Labour Party, arguing (on the one hand) that Labor’s policy to restore collective bargaining rights shows that is simply captive to the unions, and (on the other) that Labor and the ACTU are torn on the crucial issue of whether collective bargaining rights should be dependent on a union showing majority support in the workplace.

It is this latter aspect of the ACTU’s proposals that requires closer examination. Mischievously, Workplace Relations Minister Kevin Andrews has claimed that the ACTU blueprint could lead to the extraordinary situation where a single union member could seek to have a collective agreement imposed by order of the Industrial Relations Commission.

That is not what the ACTU’s document proposes. Rather, it states that: “… where a union has a member [in a workplace], it would be entitled to represent the member and be party to the agreement.” That, in fact, reflects the current legal position even after the government’s WorkChoices amendments. The law as it stands allows a union to initiate the bargaining process for a union collective agreement, where it has at least one member in the workplace.

The problem with the present legal framework is that it provides little support, and imposes many impediments, to unions actually attaining a collective agreement on behalf of the workforce. Critically, there is no obligation on an employer to negotiate with a union that has legitimately triggered the bargaining process. The employer can refuse to deal with the union, and can insist that employees take up individual Australian Workplace Agreements. It can also ‘lockout’ the workers (ie: stand them down without pay for the duration of the bargaining dispute), and use replacement labour to keep production going.

The ACTU’s proposals seek to redress the skewed nature of the WorkChoices bargaining provisions, which place all the power in the hands of the employer. Instead, the ACTU recommends that collective bargaining rights should flow from unions demonstrating majority support of the employees in a bargaining unit. This notion of majority support would provide the basis for a union to obtain ‘good faith bargaining’ orders from the IRC. These orders would cover matters such as an orderly bargaining process, and recognition by each party of the other’s bargaining representative. The Commission would also have discretion as to how to determine whether the majority of employees want a collective agreement, eg through a workplace vote, a mass meeting, a petition, or a secret ballot ordered and overseen by the Industrial Relations Commission (IRC).

Importantly, the majority support rule would only come into play where an employer disputed the very idea of collective negotiation, as has occurred in a number of bitter disputes in recent years, such as that involving RAAF maintenance workers at Boeing. That dispute also highlighted the IRC’s powerlessness to resolve bargaining impasses. The ACTU proposes to arm the Commission with the capacity not only to make orders ensuring fairness in the bargaining process, but also to arbitrate an outcome as a ‘last resort’ when negotiations fail and a party has not met its obligations to bargain in good faith.

Far from a code of rights for untrammeled union power, as it has been misrepresented by the government and the business lobby, the ACTU report seeks to entrench democratic principles in the workplace. What could be fairer than a system based on:

  • the will of the majority regarding what form of agreement should govern the workplace
  • reciprocal rights and obligations for all bargaining parties – employees, employers and unions – centred on the notion of good faith
  • oversight of the system through an independent, impartial tribunal, which still has the respect of many key players in the IR system?

These components are notably absent from the government’s WorkChoices legislation, which negates the notion of ‘choice’ as a practical reality for most Australian workers.

Dr Anthony Forsyth is a Senior Lecturer and Director of the Corporate Law and Accountability Research Group, Department of Business Law & Taxation, Monash University.  He is also an Associate of the Australian Institute of Employment Rights.