In its recent submission to the Senate Inquiry into the Fair Work Bill, the Australian Institute of Employment Rights (AIER) calls for the establishment of national centres to promote positive workplace relationships and the partnership model.
Following is an extract from the submission.
Prominent 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. Unfortunately, although the Bill represents a vast improvement on the existing legislation and can be regarded as a very large step forward, AIER believes that genuine long-lasting reform requires workplace cultural renewal and a further round of legislative change.
The government is often heard to say that if employers and unions are both critical of this Bill, then it must be getting the balance right. Whilst this asserted ‘balance’ is far better than the largely one-sided approach taken by the Howard Government, this kind of balance is not the kind of balance Australian industrial relations is looking for. What we need is consensus not just balanced horse-trading. Consensus is possible if both employers, employees and unions are each willing to recognise the legitimate rights of the other. Rather than simply acclaiming the fact that both employers and unions are equally critical of the Bill, what Australia needs to hear is that both employers and unions are supportive of and committed to a new consensual approach to industrial relations.
The failure to enunciate through the Bill a guiding set of principles and values amounts to a major flaw. The Bill has no foundational principle or guiding philosophy. Rather, it patches a regulatory scheme around a mixed-pot assembly drawn in part from re-assertion of hybrid fairness values, in part from the values reflected in the scheme it replaces and in part from approaches associated with an implicit assumption that the rationale for regulating the employment relationship arises from an adversarial character in that relationship extending to most processes that pertain to it. AIER believes that the Bill’s fundamental foundation upon the assumption of an adversarial employment relationship causes the Bill to promote a functionalist adherence to legislative standards that reinforces an adversarial approach to the relationship.
AIER believes that the Bill should be based on a foundation of ‘workplace citizenship’ that would encourage employers, employees and their representatives to interact positively in their capacity as industrial citizens. Such an assumption would enable all parties in the industrial relations system to reject conflict in favour of a new spirit of cooperation.
Given the foundational flaw upon which the Bill sits, it is unproductive to dissect it and examine its detail. Whilst acknowledging that the Bill represents a significant improvement to the current legislation, AIER seeks to make the point that the Bill should be seen as a first step towards more genuine reform. The Bill’s inadequacies ought not be simply attributed to the government or to the parliament, which may now enact it into legislation. The Bill’s failure is a reflection of the existing industrial culture. The Bill is a mirror of who we are at this point of time.
Australia requires workplaces 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. A mixture of mechanisms is required to create the environmental factors conducive to this change. The government and the parliament should provide the leadership, but the industrial parties and workplace participants need to take responsibility for making the necessary cultural change a reality.
AIER recommends three immediate initiatives are pursued in furtherance of establishing the workplace relations system that Australia deserves. The first initiative involves amendment of the Bill and the other initiatives call for executive action leading to a second phase of legislative change.