Power: The Federal Government And The Union Movement Essay, Research Paper
When discussing power and its implications, one must take into account several key things: who the proponents are, what positions they hold, and what they have to gain from exercising power. Generally, it is obvious when power is employed, it is one group contesting the other, and an outcome is achieved by the exercise of power, usually by the group in the strongest position. However, often, relations become distorted when institutionalised power is at play, and likewise with ?people power? groups. The present relations between the Federal Government and the union movement continues to be a struggle for both parties. By introducing Industrial reforms, the government has made a two-pronged attack on workers and the union movement. The following essay aims to demonstrate the different types of power these two groups hold, how they use it, and the likely outcomes of such a struggle. This will be established in part by outlining the various reforms to Industrial Law which affect unions and using two corresponding case studies to ascertain how reforms and a general ideology clash have affected the function of unions and how, consequently, unions use the power they do have to compensate for this.
Since the 1980?s, the structure and role of Industrial relations has been in a state of metamorphosis. This has been due to a number of changes in the ideology and logistics of the workforce and key shifts in institutional power. After 1975, and the panic and economic burden of the Vietnam war had subsided, business began to pressure both Coalition and Labour Governments to improve the waning fortunes of private enterprise by a combination of economic restructuring, tax cuts and wage cuts, along with reduced spending on welfare, education and health. The union movement had been the main obstacle to achieving these goals and so had been singled out for special attention by business lobby groups. The Fraser administration tried and failed at both the economic and industrial tasks set by business and it was not until Bob Hawke was elected in 1983 and the Accord framework put in place that the business agenda of economic restructuring was put in motion (Workforce 1997, p5).
The Accord lifted the share of national income going to profits and enabled some Australian companies to become internationally viable. As the corporate sector?s profits continued to rise, business changed approach and actively supported Labor in the consecutive elections of 1984, 1987 and 1990 (Workforce 1997, p5). However, Labor?s economic restructuring with the Accord did not carry the business sector as far as expected, and in the pre election hype of 1996, it was courted by the Coalitions promises of radical strategies to facilitate economic growth and better deals for big and small business. However, the Coalition was concealing some of their more strident plans for the working population, and veiled it under their expressed concerns on what they termed as a ?trade union monopoly?(Howard in Wood 1996, p5).
As early as 1985 when John Howard was elected Liberal leader, he declared ?The biggest single challenge over the next five to 10 years is to free up the labour market?it does involve a winding back of certain elements of trade union power.? (In Kelly 1998, p5) After a successful election in 1996, Howard, with the encouragement and help of Workplace Relations Minister, Peter Reith was finally able to set in motion a series of changes that would permanently alter the role of the union movement. A discussion paper issued in March 1996 propounded ?a more direct relationship between employers and employees, with a much reduced role for third party intervention and greater labour market flexibility?(Reith 1996, p29) By ?third party? Reith meant solely, the union movement.
It is not restricted information that the Liberal/Coalition and the union movement have permanently been at odds. They have opposing ideologies and possess different kinds of power to back up those ideologies. The Coalition?s primary aim is to advance economic growth, mostly by promoting big business and to a lesser degree, small business. Their belief is that by creating economic wealth through these avenues, it will stabilise the country and promote independence. Thus, their sympathies must lie with employers. Alternatively, the union movement, is principally concerned with the rights and liberties of the workers who sell their labour. Both parties have only their interest group in mind, hence the reason for such power relations between the two.
The reforms to the Industrial Relations Act (which was renamed the Workplace Relations Act) of 1996 saw significant additions, revisions and deletions to many sections of the Act. The Coalition purported them to be in the interest of ?equity in the workplace? and ?providing a framework for cooperative workplace relations? (Lee, Peetz 1998, p19). However, it seems more than coincidental that after a life time of loathing, the Coalition has been able to undermine and weaken the union movement under the guise of beneficial workplace reforms. The major reforms to the Act pertain to 5 main sections, which deal with:
Powers of the Commission, Certified Agreements, Australian Workplace Agreements, Minimum Conditions and Registered Organisations.
The first reforms relate to the standing powers of the Industrial Relations Commission. In the Industrial Relations Act 1998 the general powers of the commission arose under Part VI of the Act, specifically ss 99-105 dealing successively with the notification , finding, conciliation and arbitration of disputes. Those powers were then to be exercised within the context of the statue as a whole ? its object and many further requirements or limitations (Rimmer in Lee & Sheldon 1997, p54). However, in practice these few simple clauses changed the role of the commission as we have previously known it. It has now been limited to 20 ?allowable matters? which unions can bring to the commission. These include:
?Classifications of employees and skill-based career paths
?Ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours
?Rates of pay generally, rates of pay for junior, trainees or apprentices, and rates of pay for employees under the supported wage system
?Piece rates, tallies and bonuses
?Annual leave and leave loadings
?Long service leave
?Personal/carers leave, including sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave
?Parental leave, including maternity and adoption leave
?Public holidays
?Allowances
?Loadings for working overtime/ casual or shift work
?Penalty rates
?Redundancy pay
?Notice of termination
?Stand-down provisions
?Dispute settling procedures
?Jury service
?Type of employment
?Superannuation
?Pay and conditions for outworkers (WRA 1996, s89A(2))
Simplifying matters to appear before the commission has certainly affected unions. Their primary role has been restricted to ensuring compliance by employers with Awards and with a licence to act on behalf of members only as and when expressly requested and authorised by the members, and not otherwise. It is also intriguing to observe that changes to awards came shortly after Australian chamber of Commerce and Industry affiliates filed an application in the Commission to strip back various awards to include only ?allowable award matters?.
Secondly, and probably most importantly for workers, provisions for Certified Agreements and Australian Workplace Agreements have been radically altered. Certified Agreements are not new; provision was made for them in s115 of the 1988 Act. However, the 1988 Act provided a central role for unions in the negotiation of enterprise agreements where the 1996 Act does not. This addition to the Act lays the foundation of the concept that employers and employees should take primary responsibility for the negotiation of the terms and conditions of employment in their particular workplace. Even where an employer seeks to negotiate a Certified Agreement with a union, it may only do so where the union has at least one member employed in the workplace, and who will be covered by that particular Certified Agreement. Where an employer seeks to take advantage of the right to negotiate certified agreements directly with its employees, unions are only entitled to represent the industrial interests of employees if they:
(a)are members of the union and the union is entitled to represent the employees? industrial interests in relation to work that will be the subject of the agreement; and
(b)have requested the union to represent the employees in meeting and conferring with the employer about the agreement
(Workplace Relations Act 1996, s 170LK (4))
However, where the agreement is made directly with employees, the employer must notify employees that they may be represented by any union that is entitled to act in their industrial interests in any meetings regarding the Agreement. Discretion is left entirely up to the employee, the union has no influence in the matter.
While Certified agreements are made with certain divisions of the workplace, Australian Workplace Agreements (AWA?s) are made between employers and individual employee?s. Furthermore whilst certified Agreements allow for union representation, and in fact some employers request this, AWA?s have no official role for unions, instead, the task falls to the office of the Employment Advocate, whose primary role is to evaluate and approve AWA?s. Unions may undertake the unofficial role of bargaining agent, but unlike Certified Agreements, the employer is under no obligation to make the employee privy to the information that unions may be called in, in special circumstances. In the case of Certified Agreements, the union may make submissions to the employer even if they only have one member under the agreement, but unless it has been employed as a bargaining agent, the union is expressly prohibited from making submissions or being heard in relation to the ?filing, approval, variation or termination of an AWA. (Workplace Relations Act 1996, S170 WHA)
The section containing Minimum Conditions has also been altered so as to exclude union interference to a minor degree. Unions have retained the right to represent members before the Commission and the Court in matters involving complaints arising form the termination of employment, however, the Act has changed the distinction between unfair and unlawful termination. Unions have lost the right to make an application to the commission where the complaint only arises from employee declaration of unfair, unjust or harsh dismissal, they do, however, retain the right to represent the employee if it arises from unlawful termination. Before there was distinction between the two types of dismissal, unions could take the employer either to court or the commission for both disputes.
Also under Part VIB, which pertains to Certified Agreements, s170MN has been added. This concerns when protected industrial action may be undertaken. Protected industrial action instigated by employees or unions, is explicitly prohibited outside bargaining periods for Certified Agreements. In order for the industrial action to be ?protected? unions must give written notice upon the expiry of the old Certified Agreement or AWA and before bargaining begins on the new agreement, that they intend action to take place. According to new section 127, this action must be authorised, and can be terminated immediately if the Commission considers that a party (unions or employers):
?is genuinely not trying to agree
?fails to follow commission directions; or
?is harming the community of the Australian economy.
(Mourell in Lee, Sheldon 1997, p113)
No longer do unions have the right to instantaneously withhold labour on behalf of workers; the most formidable power they have held in the past.
In that same Part, that which deals with Dispute Prevention and Settlement Part VI, Section 127AA deals with new Rights of Entry. Provisions in awards concerning right of entry are now unenforceable. Unless a permit has been requested by an individual union official and has been granted by an Industrial Registrar, rights to enter premises have been revoked. If they do receive the permit is not transferable to any other union official, stands for only three years and may be revoked at any time by the commission. Even with the permit, union officials are required to give 24 hours notice of entry and must not enter unless they have at least one member on the site. They must also inspect exclusively during office hours and interact with members only on meal breaks (Workplace Relations Act 1996, Part VI s127AA, s285G & s285A). Thus, surprise visits to unscrupulous employers, one of the ?big guns? in the union arsenal have now been made illegal.
Perhaps the most critical reforms affecting unions directly are the changes to Part IX-Registered Organisations and Part XA-Freedom of Association. These two reforms are also outlined in (f) and (g) in the Objects of the Act:
(f)ensuring freedom of association, including the rights of employees and employers to join an organisation, or association of their choice, or not to join an organisation or association;
and
(g)ensuring that employer and employee organisations registered under this Act are representative of and accountable to their members and are able to operate effectively (WRA 1996, Objects)
These two amendments have really ?hit unions where they live? (Gibb 1999, p17) in regards to membership. Part IX, dealing with Registered Organisations, encourages the registration of small enterprise Associations by decreasing the minimum size of unions from 100 to 50 (ss189(1)(b)& (1)(c)) and doubling the limit of annual income from $10,000 to $20,000 before an organisation has to comply with certain accounting requirements that larger unions do. As a consequence this is promoting movement away from larger, more powerful, amalgamated unions to the weaker associations with limited resources and money.
This reform becomes a dual attack on Union membership when combined with the new Freedom of Association section which has replaced the repealed concept of ?conveniently belong?(which essentially means that there must only be one union to which members can conveniently belong or which can effectively represent them). Since employees have the choice to belong to a union, or refrain from taking membership, union representation has decline from 31.1% in 1996 to 24.7% in 2001 (Klikauer, T. 2001,http://list.waikato.ac.nz/archives/prir-l/2001/04/msg00034.html) This section effectively puts an end to union preference or closed shop agreements, whether formal or informal, punishable by penalties against the union or organisation (Workplace Relations Act 1996, s298Y). It also establishes provisions to prevent victimisation of union members by employers, now that being part of a union is a unfavourable in terms of who to hire.
All major reforms to the Workplace Relations Act influence the mechanism of the union movement in some way, however, the reforms outlined above communicate the largest effect. The government may indeed be attempting to reform the workplace so as to create a more equitable environment for both employers and employees, but are also taking this opportunity to mark provisions to quash any stronghold that unions may have on the workforce. Since 1996, and the passing of the Act, Peter Reith, and his successor, Tony Abbot have constantly tabled reforms (often a rehash of previously rejected amendments) to harm unions and union perception. In 1999, Reith tabled a ?Second Wave? of reforms to pass before the senate, however, ? The bill failed to address issues the Democrats believed were more important that attacking already depleted union power?? (Workforce 2000, p1). Before his resignation, Reith had again tabled reforms, many being formally rejected in the first and second wave.
The degree to which these reforms have affected unions is still being revealed. The entire movement has found it demanding to persevere with strategies for overcoming incongruity in the WRA 1996, however, as an increasing number of cases test the boundaries of the Act, unions begin to understand how these hurdles are overcome, or at least, operated inside to the satisfaction of all parties. The government has used their influence to instigate reforms that have reduced the power of unions, but now, unions are discovering that these reforms lend a certain power in themselves. In trying to scale down the number of unions, and weaken the ones that are existing, the government has succeeded in creating a sort of solidarity between unions that would never before existed. This is clearly seen in the case of the ?waterfront dispute? of 1998.
Two of the country?s largest and most powerful unions, the Maritime Workers Union and the CFMEU (Construction, Forestry, Mining and Energy Union) were the focus of governmental ?union busting? after the election in 1996, due to the fact that the industries concerned have a extraordinarily large union membership percentile (CMFEU 2001, http://www.cfmeu.asn.au/). The government saw these two unions as a threat to Industrial reforms, and formulated strategies to break their grip on the industries they represented. By the very force of their membership, the government knew that these unions were powerful enough to negate most attempts to shut them down.