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Modernising Australian industrial relations

By Adam Bisits - posted Wednesday, 15 February 2017


It is not surprising that the present and the last government have been half hearted in the industrial field, for the industrial relations bureaucracy and the industrial relations club are well entrenched in Australian commerce, in public administration and in politics, and the government is scarred by Work Choices.

Any legislation to dismantle the present system would ordinarily be futile because of the non-government majority in the Senate. There is also the risk that dismantling legislation would be mishandled, in the way that Work Choices was not preceded by public analysis and when made was a tedious piece of legislation the benefits of which were not self evident. Industrial legislation has, more so than other law, to speak directly to the worker. The government is not to be criticised for presently not actively legislating or attempting to legislate for greater freedom of employment.

However today's announcement that the transition to the new federal building code is to be shortened from two years to nine months and that non-compliant federal tendering is to be limited shows a government needing to distinguish itself - before industry and from the Labor party.

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The prime minister Malcolm Turnbull has already said he wants "an agile economy", a nation that is "innovative, that is creative". He has said "(W)e have to recognise that the disruption that we see driven by technology, the volatility in change is our friend if we are agile and smart enough to take advantage of it".

So far he has not applied this openness to change to industrial relations. This is odd even though increasingly, for years now, industry, including BHP Billiton has been critical of the Fair Work system. The prime minister has merely stuck to the two very tame proposals of his predecessor.

The first of these is a no brainer, namely restoring the Australian Building and Construction Commission, which has been a successful policer of an often corrupt industry. The other proposal, the establishment of a new body to oversee unions and employer bodies, the Registered Organisations Commission, is a bureaucratic way of dealing with their privilege and their protection from competition. Requiring 'registered organisations' to report on their finances and affairs more candidly could have been achieved by applying company reporting obligations. The future does not look good if you allow for regulatory capture. The recent example of the Wheat Export Authority, also a very specific regulator of a monopoly sector of the economy, was that it did not control the rort-prone AWB Ltd which had the wheat export monopoly.

However it is an achievement that both proposals have now been legislated and that the ABCC was established within about a day of royal assent and is now to be strengthened.

What is to be done if the government cannot legislate? How can it be ready for Derryn Hinch and Nick Xenophon, when they are willing to support the government?

The answer is that the Minister for Employment should speak up on the defects of the present system. This should not be the preserve of Australian Mines and Metals Association or of Andrew McKenzie or Tony Shepherd. The minister has the resources to do this. If our executive director John Slater, with the support of the Menzies Research Centre, can research the rorts, cost overruns and delays under CFMEU arrangements for the construction of the Commonwealth Games stadium on the Gold Coast, the minister's officers could do much more.

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The minister should speak up on wrong decisions, costly proceedings, delay, on the minimum wage and on the conduct of Fair Work Commissioners. There is no shortage of topics. One is abstruseness. A decision of a tribunal for workers should be addressed to workers. A decision as to apprentices should be addressed to apprentices. This was not the Fair Work Commission's approach in a very recent decision of the full bench of the commission. In that decision the conclusion as to how an enterprise agreement for apprentices in Queensland was to be judged "better off overall" was expressed as follows:

We therefore consider that the relevant NAPSAs relied upon by ATQ terminated on 1 January 2014, and consequently do not cover any of the employees covered by the 2016 Agreement. Coverage by the associated transitional APCSs ceased on the same date. The Commissioner's conclusion on this score was correct. Item 18 of Sch.7 of the Transitional Act has no application to the approval process for the 2016 Agreement, and the BOOT must be applied in accordance with s.193 of the FW Act using the relevant modern awards as the comparator instruments.

Why not say to the reader that the apprentices' terms have to be better off than what is in a particular award of agreement and illustrate how the test is met and what it means to apprentices or their employers? The commission's using a language understood only by the most seasoned lawyers or officials is a pandering to the exclusiveness for which the IR club has been properly criticised.

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This is an edited version of Adam Bisits report to the AGM of the H R Nicholls Society.



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About the Author

Adam Bisits is President of the H R Nicholls Society.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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