Written by Rhodes Scholar Joanna Mascarenhas, former Senior Presidential Member of the Australian Industrial Relations Commission The Hon Paul Munro, and AIER Executive Director Lisa Heap, this discussion paper on the goverment’s Fair Work Bill argues that the time is now to lay the foundations for a fair and decent workplaces.
Highly credentialed Australian academic Margaret Gardener has said when considering the task of altering Australia’s system of employment regulation, that we face a “Higgins moment” in Australian industrial relations, “when we can negotiate an outcome that draws on our history but can respond flexibly to the future; when we can lay down the bases of a system that should serve for many decades”.
The significance of the task and the opportunity it creates should not be lost.
Over the next few months, the parliament will make decisions about the regulation of our work relationships that will shape how workers and employers think, feel and relate to one another. This is a unique opportunity, a chance to change workplace culture and bring fairness to Australian workplaces. In AIER’s view, our system needs to be embedded with a commitment to promote good faith relationships and the desire to create dignity at and of work. Something akin to the International Labour Organisation’s ‘Decent Work Agenda’ adapted for Australian purposes – we believe that our Charter of Employment Rights is a good starting point.
Over the past ten years the legislation, and therefore the system, has supported and encouraged aggressive/defensive behaviours from employers and an undermining of the valid role of trade unions. This has served no one well if only because it resulted in a highly politicised and polarising response from those who opposed the policy and its outcomes. The economic crisis that is certainly in front of us justifies a strengthening not a weakening of collective and participative values.
At the last federal election the Australian people resoundingly rejected the policy approach comprehensively identified with the WorkChoices legislative package. However, elements of that package have been allowed to permeate workplace culture. Overcoming the effects of ten years of a combative command and control approach to industrial relationships will need a sustained effort and visionary leadership from government, from opposition parties, and from leading participants influencing labour market relationships.
AIER is therefore concerned that this government has not taken the opportunity to found the Fair Work Bill on principles and values that reflect a new approach.
The Fair Work Bill contains provisions which are an improvement on the current legislation however, the government has not taken the opportunity to found the system on a positively cooperative model such as that of ‘workplace citizenship’ , avoiding the policy and procedural hangovers from the essentially adversarial model it replaces.
Technical changes will not be enough.
Beyond the triggers and signals provided for in legislation the government needs to introduce significant initiatives to support workers and employers to make the shift to a new culture.
These initiatives include supporting organisations such as AIER who work collaboratively (and in our case from a framework of tripartism) towards substantive change. For the government to achieve its stated policy objectives there is a need to rebuild an environment of trust and partnership in workplaces and between the industrial parties. There is also a need to provide education to the industrial parties and to the broader community of what constitutes fairness in the workplace.
The government’s policy objectives require workplace environments that are open, participative and conducive to learning and parties that are prepared to work in an environment of mutual respect. Changing legislation alone will not achieve this result. Serial changes to legislation and to agencies to reflect the ebb and flow of partisan advantage or political expediency will frustrate capacity and motivation to realise it.
Government can create the environmental factors conducive to this change. The industrial parties and workplace participants need to then take responsibility for making it a reality.
Fair Work Australia (FWA) won’t change workplace culture
AIER is of the view that this is not a role that FWA will easily be able to play. A regulatory and administrative agency such as FWA or the Fair Work Ombudsman will not readily be able to foster the front-end cultural change that is required. The government needs to look towards organisations such as AIER to assist it to fully achieve its stated policy objectives.
In this discussion paper we set out in detail why its approach of industrial citizenship should be supported, what changes need to be made as an interim measure and also identify the role of a new organisation that is vested with the responsibility of assisting the process of changing workplace culture.