The Australian Institute of Employment Rights (AIER) Executive Director Lisa Heap delivers an address to the Fair Employment Advocate Forum on finding a compact which promotes sustainable workplace relationships.
Firstly in opening can I acknowledge the traditional owners of the land on which we meet, recognise their elders and thank them for their custodianship.
Secondly, can I acknowledge and thank Helen Creed for the opportunity to speak and to use this forum to launch our book in Perth. Thank you also to Helen’s staff in particular Aileen and Celeste for all of their work in organising tonight’s event.
Before beginning may I say a few words about AIER. As set out in the publicity material that you have before you, AIER is an independent think tank. We are tripartite in nature including employer and employee interests in our make-up and membership. The third part of the relationship is what we refer to as the public interest – in this area we engage with respected members of the academic and legal profession who have an interest in promoting fair employment standards, reflective of Australia’s international obligations. In our team they are voice for the broader public interest.
We are based at Monash University but we are independent from them and in fact from any other organisations, institutions and interest groups.
Our aim is to promote the recognition and implementation of the rights of employees and employers in a cooperative industrial relations framework. It is a framework based on the recognition of the interdependence of the employment relationship and founded in principles of reciprocity and mutuality. Something that I must say seems to be sadly missing from the current public discussion about industrial relations/workplace reform. The loss of the concept of relationships in the workplace, as the core foundational unit, over recent years, and particular in public discourse is something that I fear will cause lasting damage – regardless of federal election results.
So, Helen has asked me to speak in order to promote a discussion about the rights-based approach to employment relationships. On the one hand this sounds like a grand task – as if there is some well thought out academic or theoretical model – say called the rights-based theory on which to base the analysis. For those of you poised with pen in hand hoping to capture a framework that you can apply immediately I will have to apologise in advance. This is not a new theory, in fact it’s probably such an old fashioned approach that it might be trendy or retro. And I will admit upfront it does have strong foundation in the sometimes unpopular notion of common sense.
There is a warning for potentially some of you in the audience – if you find yourself steeped in the traditions of unitarist theory it may prove a challenge to you however I ask you to keep an open mind so that we can at least discuss differences of views at the end.
I have titled this address ‘Better Together: Finding a compact that promotes sustainable workplace relationships (A discussion about the rights based approach to employment relationships in Australia)’. I will use AIER, how and why it came into existence and what it s seeking to achieve as a narrative to explore the approach.
The topics I will cover are:
- Why a rights-based approach
- The foundations/sources of rights
- Which rights
- The way forward – Good faith performance and work with dignity
- Along the way I warn you, I will attempt to sell you at least an AIER membership, a copy of the book and a commitment to work with us in your workplace!
Why a rights-based approach
The discussion about a rights-based approach in the workplace should not be divorced from the general discussion about broader social or community rights. In Victoria the government has recently adopted a statutory Bill of Rights. The arguments in favour of this (just like the current movement to pursue an Australian Bill of Rights) include:
- The need to create a foundation or set of principles for behaviour broadly accepted and not subject to political interference
- As a tool of education
- As a guide to legislators and opinion makers (and also therefore for the judiciary)
- Effectively to create, therefore a mooring against which we can judge our own actions and the actions of others – which we do not stray too far away from and that we will be pulled back to from time to time
We are beyond sensible public discussion about workplace relationships at the moment. Anyone who wishes to talk about rights, balance, fairness and collectivity is immediately slapped with the ‘union conspiracy’ tag.
Likewise, and just as concerning, is the depiction of all employers being motivated to rip-off workers’ entitlements in order for their business/industry to survive.
This depiction of Australian workplace relationships as a polarised union versus employer rights/wants scenario is from my experience and recent consultations a false one, however I fear the way that this debate has been carried forward has damaged the fabric of our system of workplace relationships such that an enormous effort by all of us who are committed to finding sustainable workplace relationships will be required.
We need to establish this mooring and the space, including the public space to discuss it.
For employers, the rights-based approach has the potential to:
- Create an environment of organisational health and well-being rather than one based on distrust and manipulation
- Create a system of values/attitudes against which organisational performance can be measured – align espoused values and performance
- Remove the uncertainty associated with current political lurchings in regulations/legislations, particularly if adopted as part of legislation
- Improve management performance
For workers, the rights-based approach has the potential to:
- Raise awareness about the foundations of the employment relationship giving voice to how they feel about work
- Create greater certainty
- Build understanding of expectations
For unions, the rights-based approach has the potential to:
- Move the framework for organising forward providing a vision to organise around
- Provide a tool for educating employees and union representatives
Enter AIER. In the context of this conflicted environment, as iconic Australian employment rights and institutions were being stripped from our system, those involved in AIER sat down to consider the question of what is non-negotiable in the employment relationship – what rights and values should exist in our workplaces which are beyond doubt – are inalienable and therefore not contestable within the industrial or political arena?
The result of this deliberation is AIER and its Charter of Employment Rights.
The foundations/sources of rights
Of course Australia has historically had a rights-based approach to employment/industrial relations – it was just that we usually referred to the institutions that established and enforced these rights rather than the rights themselves.
Those involved in developing the Charter recognised this and looked to those traditional sources of rights. The rights and values in the Charter are founded in:
- Rights enshrined in international instruments which Australia has willingly adopted and which as a matter of international law is bound to observe
- Values which have profoundly influenced the nature and aspirations of Australian society and which are embedded in Australia’s constitutional and institutional history of industrial/employment law and practice. In particular, the Charter draws upon values integral to what has been described as the “important guarantee of industrial fairness and reasonableness”
- Rights appropriate to a modern employment relationship, which are recognised by the common law
I refer you to the text of the Charter of Employment Rights.
In simple terms what we believe should be non-negotiable in the employment relationship is:
- The employment deal/contract should be respected and honoured in its performance – it needs to be acknowledges as a relationship.
- Work with dignity -Recognition that workers and employers are people, not machines or commodities and therefore every person should be treated with respect and given dignity both in terms of the relationship and in relation to the organisation of work.
- Every workplace should be free from discrimination and harassment of any kind.
- Workplaces should be safe.
- Workplace should be democratic. Employers have the right to manage. Workers can make a valuable contribution and their views should be listened to.
- Those who want to join a union can and they can have their union represent them in their workplace.
- No worker should be dismissed without a valid reason.
- Minimum standards should exist and be maintained by an impartial tribunal so that fair minimum wages and just conditions are achieved.
- Bargaining should be collective. This corrects the power imbalance between and employer and an individual worker. Employers and employees have a right to be represented in the bargaining process. Individual arrangements should not be allowed to override the collective or undermine the process of collectivity.
- When there are industrial disputes everyone should try and resolve them in god faith and if they can’t they should be able to seek help.
I would particularly, in the context of the discussion here tonight, like to refer you to the first two elements of the Charter that in fact form the first two Chapters or our book. They are the elements of Good Faith Performance and Dignity at Work.
I point these out because they are the foundations of the rest of the Charter and because they provide a good starting point for our way forward.
The Way Forward
Good Faith (performance of the employment contract)
As noted by Joellen Riley in our book An Australian Charter of Employment Rights:
“In positive terms, good faith performance enshrines an obligation to cooperate to achieve the mutually agreed objects of the relationship. In terms of a set of prohibitions, good faith performance requires that parties to a working relationship must not act in a manner calculated to destroy the mutual trust and confidence of parties to the relationship.”
It is a relatively simple statement but one which has so much meaning for us in our current context. The emphasis is on the relationship in the employment contract!
Work with Dignity
The Declaration Of Philadelphia, which informs the aims of the International Labour Organization (ILO) states:
“all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.”
Today this notion has been translated into the ILO’s object of pursuing decent work: job creation, rights at work, extension of social protection and promoting dialogue and conflict resolution. This is the foundation of work being carried out in many developing countries and the European Union.
Not a bad framework from which to build today in Australia.
Within the book this topic covers both the notion of:
Dignity at work – the employment relationship in which work is conducted the need to protect from abuse or disadvantage arising from the nature of that relationship.
Dignity of work – the intrinsic nature of work, its organisation and design, the labour process or the socio technical system of work and includes such things as job satisfaction, skill enhancement and career progression.
There is nowhere at the moment where you could be assured that these principles are informing the development of public policy. And in fewer and fewer workplaces, particularly those involving work for want of a better term at the lower end of the labour market, where these elements are informing the employment relationship.
In the end a work environment in Australia which has not time or place for good faith and dignity will be of cost to us all – in terms of lack of social cohesion, lack of long-term planning including skills development and ultimately in terms of lower productivity.
Taken back to its core what is needed in Australian workplaces is a re-invigoration of the respect for human relationships. To the extent that we need a system to regulate this, we need one that promotes relationships rather than compounding human division.
As demonstrated by the work of AIER, if we talk from a framework of principles and values, then the answer to the current political conundrum regarding workplace regulation seems obvious and far less complex than any politician or journalist would have you believe.
Beyond and outside of this political framework AIER is interested in making connections with organisations that would like to explore the use of the Charter to further their aims.
We will also be offering training for union and management representatives in the rights based approach and in particular good faith performance and dignity at work shortly.
In closing I would like to quote from the introduction to the book the words of AIER’s President, Mordy Bromberg:
“Workers and employers have much in common. Together, they provide the workplaces that sustain our material needs and contribute to the social cohesion that defines us a community. A foundational unit of society, workplaces provide most of us with sustenance, an identity, a purpose and many of our social connections. They also take so much that is precious –our time, our energy, our opportunities to pursue other endeavours”.
With apologies to the unitarists amongst us but it must be better to be working together to find a compact that promotes sustainable workplace relationships rather than spending time ascertain the rights of capital to dominate the employment relationship.