The swinging pendulum of workplace relations

From a position that many saw as too far to the right, IR can now be accused of having too far a left wing bias. There is an important lesson here for employers, says ANDREW DOUGLAS, about managing the physics-like machinations of workplace law.

By Andrew Douglas

From a position that many saw as too far to the right, IR can now be accused of having too far a left wing bias.

There is an important lesson here for employers about managing the physics-like machinations of workplace law.

Julius Sumner Miller, the first science geek in television, asked after each obscure experiment – “Why is it so?” It was a question he posed after performing basic physics experiments that confounded simple viewers.

What would Professor Sumner Miller think about the physics of industrial relations? Particularly, the effect of governments on the opposing forces in the industrial battle.

Let us try the experiment of trying to get a non-union collective agreement. Presently, a majority of employees can vote up an agreement binding present and future employees at an enterprise level without union intervention. The agreement can be for five years and have a non-union/non-AIRC dispute resolution clause. The rights of entry provisions in the Workplace Relations Act only permit unions on to sites at various times and in circumscribed circumstances.

When John Howard first rolled out WorkChoices, agreements were only required to be tested against the Australian Fair Pay and Conditions standard and not awards, causing the pendulum to swing far to the right. But the balance was righted with the insertion of a “fairness test”, which was similar yet slightly different to the old “no-disadvantage test” utilising awards in the pre-WorkChoices era.

Now the pendulum has swung too far to the left with the new Fair Work Bill. In effect, unions may become a union member’s bargaining representative automatically and in turn become an enforcer and a party to an agreement.

The immediate benefits of a non-union collective agreement will be lost. Fair Work Australia (which replaces the Australian Industrial Relations Commission and other workplace statutory bodies) will, in most circumstances, be the decisive referee in dispute resolution procedures.

Rights of entry will expand to permit unions almost unfettered access to sites and employee records. Agreements will be reduced to a maximum term of four years. Flexibility provisions will require mutual consent.

Bargaining in good faith will be enforced and agreements imposed where businesses resist.

So the question is – what can you do to maintain stability in your workplace and buy time given the onset of the inevitable recession?

The answer is:

1. Lock in now a five year non-union collective agreement.
2. Develop a strong employee consultative committee that has real ownership in the business.
3. Concentrate hard on the bread and butter issues of occupational health and safety and ensuring entitlements are properly paid every time. Failures in these areas inevitably attract union attention and quite properly so.
4. Build in flexibility provisions into your non-union collective agreements that do not require mutual agreement so your workplace is able to meet the difficult and challenging times ahead.
5. Move quickly as the new Fair Work Bill could become law by 1 July 2009.

Why is it so?

Because the pendulum swung too far to the right and now it has gone the other way.

Do not permit yourself to be caught in the extremes of a pendulum’s trajectory. Gravity will draw the pendulum to the centre following extreme swings, as occurred with the Howard government’s introduction of the fairness test. What you need to do is get a buffer until the pendulum finds the centre.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.