LOUISETHORNTHWAITE ANDPETERSHELDON*
T
he expected surge of employer militancy did not eventuate on the legislative or industrial fronts. Employers appeared largely satisfied with the federal regulatory framework and continued to experiment with the choices it offers. In an election year and facing an unwilling Senate, they pulled back from their legislative crusade. Industrially and in the courts, large, adversarial employers have been losing as often as winning. Paradoxically, the main employer associations have more successfully navigated the challenges of a decentralised system. They played leading roles in a number of test cases and in defending employer interests in the face of legislative activism from Labor state governments.This was a year of not a few surprises. Events during 2000 had suggested that employers had begun to really use the opportunities available to them under the Workplace Relations Act 1996. Most operated in relative public anonymity and were happy with their various arrangements. However, some of Australia’s largest employers had developed a vision, as if waking from a part-forgotten dream, and moved to realise it by more radical use of the structural opportunities that the 1996 Act allowed. The vision was of a subservient, compliant workforce largely untouched by unions or protective regulation. In this process, they had had much help over recent years from the ‘Workplace Relations Club’ (the Club)—that band of radically unitarist true believers ever rotating among government departments and ministries, employer associations, companies and consultancies. Central too had been the ready support of a federal Coalition government with a sharply honed sense of how to convert political correctness into facts. As these forces coalesced during 2000, a new strategic wave of legislative agitation, litigation and lockouts had gathered to bend and break workforces to their wills. Nevertheless, the federal Senate had largely broken the legislative force of this wave by repeatedly rejecting extremist Coalition (and employer) legislative proposals. As well, the mainstream courts had proven a far less certain channel for litigation than the Club had anticipated, in the process also weakening the force of some lockouts.1
During 2001, once again, most employers went about their industrial relations apparently content with the legislative framework they were working under. For the Club’s vanguard employers however, events in 2001 and their consequences, as well as questions of timing encouraged strategic withdrawal. As the tide ebbed, many of those employers accepted consolidation and compromise on a number of fronts. Governments, employers and unions all still attempted to make
decisive forays and historians may, one day, note the unlikely tale that, during 2001, in the big set piece battles that these most adversarial of employers had unleashed, unions gained far more than they had lost. Yet, there remains a great deal of flux. The federal government has renewed its witch hunt against building and construction unions and a number of important cases went the employers’ way. Away from the Club’s chosen terrain, coordination among employers appears to have remained a winning formula in major defensive campaigns against manufacturing unions and in lobbying state governments. If anything, mainstream and non-partisan employer associations are looking more useful to employers than predicted at the start of the decentralisation process. So, how could large, extremist employers have lost ground when the system had been so tilted in their favour?
One answer lies in unions’ demonstrated ability to slow and sometimes stop or reverse hostile employer and governmental initiatives and to render them more costly than they are worth to most employers. So, rather than the Club having provided breaches in the wall for less audacious followers to widen, they have demonstrated that such forward excursions can have uncertain and contradic-tory outcomes. Most employers and their associations are far more pragmatic and tolerant than Club zealots and they know that there is much more to run-ning a successful organisation than imposing some idealised industrial relations nirvana. They increasingly acknowledge that they have reaped much already from the last decade’s regulatory changes and recognise limits to more dramatic struc-tural changes under the present system. The question then becomes why, dur-ing 2001, didn’t they maintain the intensity of their previously obsessive pitch for ever more legislation?2
Answering this question links to another, broader reason why employer adver-sarialism—industrial and political—appeared to have stalled during 2001. First, it would appear that it may have begun to meet social and political limits created by employers’ own growing media and public unpopularity. Symbolically, this particularly relates to senior executives of large companies, the sorts of arena chosen for those big set pieces. As in previous years, there was a constant stream of media information and comment regarding ever more grossly inflated man-agerial remuneration packages. Particularly damaging to the employer cause were stories that juxtaposed these packages with stories of widespread forced redun-dancies of lowly paid employees to satisfy share market analysts and fund man-agers (and executive options packages). Increasingly, there were pointed questions as to how such packages squared with corporate underachievements (and even failures), particularly where such failures led to the loss of jobs and employee entitlements. This had already been clearly apparent during 1999, and predic-tions then regarding the inevitable backlash have largely eventuated in the form of more generalised populist distaste, Labor electoral victories, the Senate’s obstruction of Coalition proposals, the passage of more restrictive state-level employment legislation and a (yet halting) revival of unionism.3
create. Certainly, as discussed below, the possibility of a Labor electoral victory in late 2001, dampened their expectations. Yet, while Prime Minister Mr John Howard’s re-election victory may further embolden those most interested in anti-union adversarialism, discussion of industrial campaigns that backfired may prove cautionary. In the meantime, employers are continuing to experiment with the federal regulatory regime. On the other hand, events conspired to focus employer association activity on state Labor government legislative matters during 2001. This article continues by explaining employer activity in relation to federal and state legislation. It then discusses employer choices regarding the range of regulatory instruments available under the federal and some state systems: awards; union and non-union enterprise agreements; and individual statutory agreements. This leads to discussion of employer adversarialism and employer association responses to a changing and challenging environment. Following this, we briefly examine employers’ involvement in a number of major cases during 2001 and a new Royal Commission whose main effects will be apparent in 2002 and 2003. Prior to concluding, we discuss employer attitudes and behaviour in the field of work and family policy.
As before, we have largely relied on (the sadly diminishing) industrial relations coverage in the daily press and business periodicals; specialist periodicals (and websites); employer association documents and interviews with prominent association officials. Again, we have largely focused on the most influential associations: Australian Industry Group (AI Group); Australian Chamber of Commerce and Industry (ACCI); Australian Business Limited; Victorian Employers’ Chamber of Commerce and Industry (VECCI); and the Business Council of Australia. Once again, we are indebted to those officials for their time, assistance and goodwill.4
Reith staffer, Mr Peter Anderson joined ACCI as its workplace policy director replacing Mr Brian Noakes who has retired. Significantly, too, following the Coalition’s election victory, ACCI’s chief executive Mr Mark Paterson left to head the federal Department of Industry.5At Australian Business meanwhile, chief
exec-utive Mr Phillip Holt retired and was replaced in July by Mr Mark Bethwaite, who comes from a business background. Finally at VECCI, chief executive Ms Nicole Feely left, to be replaced by Mr Neil Coulson, a senior VECCI manager.
EMPLOYER ASSOCIATIONS, FEDERAL POLITICS AND POLICY
Employer association surveys of their members and more informal feedback dur-ing the year showed, with the exception of the unfair dismissals question, a strik-ing lack of urgency with regard to industrial relations matters. In fact, for employers, tax questions and other forms of government regulation greatly over-shadowed federal industrial relations matters in importance.6This and the
stale-mate in the Senate have encouraged greater operational moderation to supplant partisan stubbornness and wild ideological visions in some employer quarters. There is a growing acceptance that to press forward relentlessly in this situation needlessly antagonises workforces and their unions for, at best, only marginal gains. As well, it invites retribution from unions and (potentially) Labor Governments when the balance of power shifts, as has been the case in Victoria with the Workers’ First faction within the manufacturing union.7As ACCI’s Mr
Reg Hamilton tellingly put it, ‘It just seemed to the ACCI we were getting nowhere. We were hitting our heads against a brick wall by concentrating on issues where there were fundamental differences and not looking for solutions on issues where we shared common ground with the unions and government’.8
The result of this re-thinking has been a string of successful joint initiatives between ACCI, the ACTU and various governments that improve workplace and labour market situations of both employers and employees.
Perhaps symptomatic of this shift in emphasis to immediate, operational and pragmatic matters, was the Business Council’s vacating of the field for much of 2001. Speculation was rife in industrial relations circles that the dominant employer propagandist and shaper of longer-term policy debate had succumbed to the realisation that the Senate’s composition closed fruitful avenues for further change and that large employers were largely satisfied with the status quo. Another hypothesis was that, as for most other associations, other matters were just more pressing for Council members. From within the Council, the explanation was that this hiatus was the result of temporary gaps left through senior staff turnover and that the Council is gearing up for its next cycle of policy making which will unveil new, important directions in policy advocacy.9
Whatever the truth of the matter, previous initiatives, including the overblown and excessively self-serving ‘Managerial Leadership’, appear to have lapsed. Policy documents of the other principal associations, ACCI, AI Group, Australian Business and VECCI pointed towards a preference for ‘evolutionary’ legislation— particularly to increase restrictions on unions—rather than dramatic changes.10
Labor to power federally by year’s end. Employer bodies seemed to have accepted that their salad days under the Coalition were at an end and prepared accord-ingly. One sign was the quickening of activity on the jobs carousel among federal and state departments, employer associations and private consultancies. Some associations, most notably AI Group and Australian Business, have long worked hard to maintain an open, non-partisan relationship with all main polit-ical parties. Others did not indulge in the sorts of partisanship so obvious in recent elections. The one exception continued to be ACCI’s Paterson, who continued to act as the Coalition’s chief cheerleader in employer association circles. Otherwise, the federal minister, Mr Tony Abbott’s advocacy of a unitary indus-trial relations system continued to receive employer association support as did his repeated intention to ease the unfair dismissal regime facing small employ-ers. However, Howard’s electoral scare-mongering of a Labor victory bringing trade union domination across Australia failed to move employer associations onto the offensive. Some, like ACCI, the Business Council and AI Group made efforts to build media and public interest in saving those elements of the 1996 Act regime that opposition leader Beazley had targeted for change. The watchwords were maintaining flexibility, choice and the enterprise focus.11
For its part, Labor felt so emboldened by lack of public opposition from employer associations that it repeatedly promised that, immediately upon elec-tion, it would legislate changes to the Workplace Relations Act regime. These included restoring union rights of entry, the abolition of Australian Workplace Agreements (AWAs) and the Office of the Employment Advocate, and bolster-ing collective bargainbolster-ing and the Australian Industrial Relations Commission’s (the Commission) dispute settling role. Tellingly, although accused of excessive policy timidity, Beazley publicly delivered this message to the Business Council, without the Council launching a heated campaign against him in defence of the changes that it had fostered over the previous 15 years.12Of further significance
was Council’s own stated electoral priorities. Here, new Council chief executive, Lahey, echoing a broader employer interest in the question, tended to reinforce Labor’s electoral message by stressing education and training, issues to which she returned after Howard’s victory on November 10.13
Since the election, employer associations have largely re-presented the sorts of demands that the government had failed to have passed in the Senate. Some of these issues include the banning of pattern bargaining, a reduction in unions’ ability to use ‘protected’ industrial action and the further erosion of unfair dis-missal responsibilities for small employers. While employer associations re-affirm the line, it is not clear to what extent this lobbying is merely symbolic.14As well,
there are mixed feelings in employer circles regarding Abbott’s proposals to legislate for mandatory secret ballots before strikes. Perhaps this is due to aware-ness of the British experience where successful ballots strengthened the deter-mination and legitimacy of striking unions.15
legalism the Workplace Relations Act has promoted. Unions have shown unex-pected adroitness at navigating the dense thicket of possible litigation that the Act provides to ensnare them. As a dominant strategy, employers have found three main faults with the Act’s promotion of litigation in mainstream courts. First, unions seem to be winning at least as often as losing. Second, this litigation is much more expensive than proceedings before the Commission. Third, for those employers who genuinely believe in resolving issues within the enterprise, litigation is an unwarranted, adversarial diversion and one that reduces both par-ties’ commitment to building enduring relationships. This is, of course, precisely one of the main charges that the Workplace Relations Club levelled at the Commission for so long. It is interesting that the Club’s preferred legislative framework—one that shifts contested matters from specialist industrial tribunals to mainstream courts—has greatly exacerbated this alleged problem.16
As a result, there is a growing feeling among employers and their representa-tives in unionised sectors in favour of reversing the legislative weakening of the Commission’s dispute resolution role that occurred throughout the 1990s. Another reason the Commission may be looking more attractive now is that the Howard government has continued shamelessly to stack the industrial relations ‘umpire’ with senior appointments who are not only overwhelmingly from the employer world or Coalition circles, but include a number from a Workplace Relations Club that is a sworn enemy of unions, collective bargaining and the Commission system.17
EMPLOYER ASSOCIATIONS AND STATE-LEVEL LAW AND POLICY
Faced with some activist Labor state governments, employer associations were particularly busy lobbying for, and increasingly against, legislative initiatives. To do this successfully, they were particularly active in communicating with their memberships both through modern electronic means as well as through printed matter and through regional-level open meetings with members to exchange ideas and information. In fact, dealing with state Labor governments has taken over many of the resources that, within previously centralised bargaining structures, these associations had reserved for award making and bargaining. This is par-ticularly true for VECCI, given that Victoria’s industrial relations jurisdiction, to the extent that it has survived the previous Kennett government, does so as an eviscerated appendage of the federal system. However, there is also a whole range of related legislative areas that fall within state rather than federal juris-dictions and which have been subject to recent legislative activity. Thus, during 2001, some of the main areas included workers compensation (New South Wales, Queensland and Victoria), the unfair contracts jurisdiction for highly paid employ-ees (NSW) and occupational health and safety—including proposed criminal penalties for individual managers (Victoria and Queensland).18
than bargaining, would appear to run the risk of ‘free riders’ particularly among small employers to whom a Labor government is simply a less threatening wolf at the door than strong unions.
In NSW, Australian Business and AI Group were successful in entrenching many of their priorities in Labor’s new workers’ compensation legislation. Employer representatives argued that the existing system was too expensive for employers and that employers had too little control over premiums. Smaller employers in particular felt aggrieved that inclusion in particular industry categories and ignoring of good safety records brought them unfair premium levels. As well there was apparently a widespread sense in employer circles that escalating compensation payouts increasingly go to lawyers, not claimants, and that the rehabilitation system is open to ‘rorting’.20
While associations also advanced some innovative policies, given governmental financial constraints, the crux of the debate came down to competing economic interests. Thus, the planned restoration of Workcover’s finances will come at the expense of employee entitlements rather than employers’ premiums. Employer associations managed this in the face of a prolonged, broad and very heated cam-paign by Labor Council and a range of unions. The process and outcome ran against the usual closeness between Labor Council and the Labor Party machine and says much about these associations’ capacity to influence senior Labor politi-cians, their advisers and senior public servants.21
On behalf of Victorian employers and their associations, VECCI and AI Group successfully spearheaded a campaign that ended in April when the opposition-dominated Victorian Legislative Council sank Labor’s Fair Employment Bill. Central to the Bill was the government’s intention to re-constitute a full Victorian tribunal jurisdiction with broad regulatory powers. Among the proposed tribunal’s main responsibilities was setting a state minimum wage for those mainly small businesses outside the mainstream federal system and to promote consistency with federal employment regulation. More controversially, it was also to have the power to oversee areas of non-award employment, to lift ‘the corporate veil’ to make managers personally liable for organisational obligations and, as in Queensland, to ‘deem’ independent contractors to be employees.
VECCI developed a range of themes to mobilise members and lobby. Some related to worrying extensions of government regulation. Another built on an insistence that many Victorian small businesses be able to continue to benefit from Kennett’s low pay, low benefits regime rather than face similar costs paid by other Victorian employers or those elsewhere in Australia. That the Bill had the support of a few sectoral employer associations with members covered by the federal system is indicative of this. VECCI and AI Group admit shortcomings in the status quo and VECCI maintains it is keen to facilitate an alternative path for gaining a ‘balanced framework of regulation’. VECCI’s and AI Group’s solu-tion is to have federal Coalisolu-tion and Victorian Labor governments agree to bring low paid Victorian employees more fully under the federal system.22
as the union movement that current regulatory (and self-regulatory) frameworks have proven themselves inadequate in forcing a practical occupational health and safety consciousness into the minds of many senior company executives.23Under
the Bill, workplace deaths or serious injuries of employees or sub-contractors could mean employers (and their senior managers) personally face criminal prosecutions resulting in heavy fines and gaol sentences. This legislative proposal is creating great anxiety among employers, particularly in the construction indus-try, that both VECCI and AI Group have mobilised through well-attended regional meetings.24
EMPLOYEE ENTITLEMENTS
The issue of employee entitlements in cases of corporate insolvency reared its head almost continuously during the year, in the process throwing the spotlight on employers and their associations which, in response, contributed to some-times heated debate on the subject. The question of how governments and employers would protect employee entitlements had carried over from the pre-vious year, when a series of industrial disputes and confrontations had impelled the federal Coalition government to legislate a safety net for employees caught in the web of corporate collapses. A string of much publicised corporate failures in 2001, in which employee entitlements typically appeared vulnerable, fuelled ongoing union and government activity on the issue. Among the most promi-nent of these were the corporate collapses of Ansett, One-Tel and HIH Insurance. When it became insolvent, Ansett owed approximately $686 million in workers’ entitlements to its 16 000 employees. Also heightening the interest in the issue of employee entitlements was a series of staffing contractions in the public sector and banking and finance industry as well as other large firms, including Patrick Stevedores, Westpac, Coles-Myer, Optus, Amcor, Gate Gourmet, and Qantas.
Compounding the public relations problem for employers, however, was the publicity the media gave to the bonuses and severance payments that firms paid many senior executives during the year. During 2001, there was growing public disquiet concerning the ‘huge payouts’ to executives, particularly in situations of corporate failure, and a growing attention to the failure of companies to link per-formance to payment systems in such as way as to penalise executives for non-performance. Perhaps the most spectacular instances, due to the short tenure of the executives concerned, were the almost $5 million of entitlements that Ansett paid its executive, Mr Geoff Toomey, after six months’ employment and Lend Lease’s payment of $15 million to one executive with one year’s service, Ms S. Pressler, in a year that the firm delivered a 95% drop in net profit. In addition, the co-founders of One-Tel, Mr Jodie Rich and Mr Brad Keeling, each received $6.9 million in bonus payments on top of their $500 000 salaries.25
of operation, the scheme had paid $3.1 million to 1650 former employees of 104 insolvent firms, and that this represented 60 per cent of outstanding wages, annual leave, pay in lieu of notice, long service and redundancy entitlements to these workers. AI Group also stressed that in the vast majority of cases, insolvent firms do not leave employees’ entitlements unpaid, and that 99.9 per cent of entitle-ments are paid in full.26
Employer groups remained firmly opposed to any legislative measures that would rank employee entitlements, including annual leave, long service leave, sick leave and redundancy payments, ahead of other creditors in insolvency situ-ations.27There was also some disquiet within employer circles about legislated
entitlement schemes being fully taxpayer-funded, with some VECCI councillors moderating their support for the federal government’s scheme due to their con-viction that this was not an appropriate burden to pass fully to taxpayers.28
However, employers faced a vocal union movement seeking improved protec-tions, on the basis that the new statutory provisions failed to compensate many employees fully for lost entitlements.29In response to continued union pressure
on the issue, AI Group lobbied the federal government for a scheme that would guarantee entitlements at least to the level of award safety net provisions. State Labor governments roundly opposed the federal government’s subsequent proposal for a scheme that, while incorporating AI Group’s suggestions, also required amendments to the Corporations Act. 30
For AI Group, the most pressing question regarding employee entitlements came through the industrial, not the parliamentary, sphere. It devoted massive resources to combating Manusafe, a mechanism through which manufacturing unions also sought to prosecute their ‘Campaign 2001’ for an industry-wide bargaining structure, a process they had begun a year earlier with ‘Campaign 2000’.31 Manusafe itself is a trust fund to protect employee entitlements that
six manufacturing unions sought to establish, partly through the enterprise bargaining process.32 Describing Manusafe as ‘a flawed proposal deserving of
the strongest condemnation’, AI Group urged members to reject any union attempts to negotiate on the trust fund. In doing this, the association pointed out that rather than just being about protecting entitlements, Manusafe would essentially become a vehicle for portable employee entitlements across the industry. Under the union proposal, employers would contribute 1.5 per cent of each employees’ weekly wage to the fund for long service leave, and other amounts for other entitlements.33 Calculating that the scheme would draw
Determined to contain union action, communications manufacturer Transfield gained a Commission ruling from Justice Munro in August that unions could not take protected industrial action in pursuit of demands for payments into Manusafe. When a Full Bench of the Commission effectively overturned Munro’s decision in November, AI Group continued its vociferous rejection of the pro-posal. Just as it had led manufacturing employers’ defence and counter-attacks against manufacturing unions’ ‘Campaign 2000’, so AI Group worked intensely with its members, before tribunals and in the media to stymie Manusafe and Campaign 2001. Once again, it claims an overwhelming success by pointing to the unions’ failure in instituting an industry framework agreement. However, AI Group also concedes that as a result of the Manusafe campaign, employees retained protections they might otherwise have lost.35
EMPLOYERS AND CHOICES OF WORKFORCE REGULATION
Once again, employer associations reported no dramatic change in employer choices regarding agreement making. There is continuing strong support for the continuation of an enterprise bargaining regime, particularly among the larger organisations that use it most. Despite association rhetoric demonising pattern bargaining, employers in some sectors would prefer to use it. The most obvious are the large construction companies that AI Group/Australian Constructors’ Association represent. They would like project level agreements. As well, small companies, for example in the private health care sector, are also thinking in terms of multi-employer agreements.36
As Professor David Plowman points out, the typical concentration on the num-bers of any one instrument at the expense of others overlooks how much, in the Australian system, employees may be subject to two or more such instruments, particularly where certain types of agreement—collective or individual— regulate one or very few questions (such as annual leave loadings) in ways that supplement broader instruments. Employer association feedback suggests con-tinuing modest growth in non-union enterprise agreements but apparently through movements away from other non-union options as well as from union bargaining. There is also evidence of employer dissatisfaction with experiments with non-union enterprise bargaining as a union avoidance strategy given their unhappy surprises with mandatory employee ballots. At the same time, unions have been gaining agreements in new areas so the picture remains very fluid. The use of AWAs continued to be a very minor phenomenon—a ‘side show’ accord-ing to one employer representative—and still mostly confined to niche groups such as managerial and professional employees and for entry level employees forced to accept them as a condition of employment, a situation that Dr Paul Gollan’s research for the Office of the Employment Advocate confirms.37
According to Gollan’s survey, this clustering of AWA adoption is relatively heaviest in the following industries: communications services; finance and insur-ance; mining; and electricity, gas and water supply.38
EMPLOYER ADVERSARIALISM
If for the second successive year, AI Group led manufacturing employers in their successful rejection of aggressive union attempts to re-establish an industry frame-work and attendant substantive gains, the picture was very different for many of the large companies that were attempting adversarial strategies on their own. During the year, a number of major employers foundered in their attempts to destroy union representation and force widespread adoption of AWAs. It was also a year when other employers used much tougher bargaining strategies and tactics with unions. Among larger employers with an ideological disposition to individualising employment relations, the crucial sectors have been mining, telecommunications, meat processing, the public sector and, increasingly, bank-ing. Space constraints do not allow a full treatment of all of those we discussed in greater length in previous years.39Thus, below, we provide a fuller
explana-tion of two of the major companies involved in adversarial relaexplana-tions, BHP and Qantas, followed by a very brief overview of a number of other significant disputes.
Never far from the limelight, in 2001, BHP continued its struggle to convert its workforce to individual contracts. While BHP has formulated a sophisticated strategy to win ‘the hearts and minds of workers’ through ‘hug and tug’ organ-isational development sessions, telemarketing, television advertisements and various other cultural change exercises, it has not been able to avoid completely the industrial relations system. A series of industrial disputes at BHP worksites across the country has continued to stall its achievement of its industrial rela-tions objectives. The BHP decision in March to merge with the British-South African firm, Billiton, further exacerbated tensions as it sparked fears of redun-dancy and retrenchment at BHP workplaces across the country.40
In January, BHP had a victory in the Federal Court which ruled that the com-pany had acted legally in offering individual contracts to its employees at its West Australian iron ore mines, and in refusing to renegotiate an improved collective wage agreement with unions. For a year, an injunction had prevented BHP from signing up any further employees to individual contracts until the union’s case had been heard in court. Following this decision, BHP initially faced the threat of a union appeal, but in February this threat dissipated when the ACTU aban-doned its challenge in the Federal Court, deciding to pursue industrial action instead.41
meetings and television advertisements. Finally, in November, BHP Billiton’s vow that its workers in the Pilbara would only receive a wage rise if they accepted non-union arrangements, proved hollow when the Western Australian Industrial Relations Commission awarded a 20 per cent wage increase to those workers who had refused to sign individual contracts. The president of BHP’s iron ore division, Mr. G. Hunt described the decision as ‘not ideal’ but, at the same time, cast it as a victory in terms of the increased flexibility in working arrangements that would nonetheless follow.42
Outside the Pilbara, BHP’s workplaces have been anything but quiet. In March, BHP’s long-running wage negotiations at its Queensland coal mines collapsed as unions commenced a week-long strike. Charging that the industrial action was motivated by the unions’ commitment to an ACTU-backed corporate campaign challenging BHP over its individual contracting strategy, BHP twice resorted to the Supreme Court to gain injunctions against union pickets. Regardless of any more general union campaign against BHP, however, union fears of indi-vidual contracting at BHP’s Queensland mines were not unrealistic, given that a BHP spokesman had said, in January, that, at the collieries, he ‘would not rule out its resorting to Pilbara-style individual agreements if resolution proved elusive’. 43
In May, a dispute erupted at BHP’s Port Kembla steelworks over the intro-duction of individual contracts. BHP had announced its intention to appoint a contractor, Serco, to run the protective services department. Serco planned to employ 50 of the 75 existing staff on individual contracts. To the workers who were currently earning $40 000 to $60 000, Serco offered contracts that included wages of $30 000 to $33 000. To the 4000 steelworkers, this appeared to be a BHP move to cut labour costs and introduce individual contacts by stealth, and hence, a test case for the entire workforce at the plant. Ultimately, after a three-day strike and a Commission recommendation that BHP consider delaying the out-sourcing, Serco agreed to negotiate a collective agreement to cover its new employees. 44
Another company that has taken a deliberately tough, adversarial stand in enter-prise bargaining is Qantas. In early 2001, despite announcing record revenue, Qantas sought a wage freeze in its negotiations with the National Union of Workers and the Transport Workers’ Union. At about the same time, Qantas indicated that it was contemplating redesigning various services, and perhaps con-tracting some out, a move that would lead to job reductions in the airline. The company also signaled its intention to reduce the airline’s Australian labour con-tent to about 80 per cent and to cut the number of flights on some routes. Qantas then intensified workforce fears when it sent 75 managers to the Philippines for training in forklift operation, stowage and baggage handling so that Qantas could staff those functions in the case of a strike.45
was soon recording record profits, following the collapse of its domestic rival, Ansett. Rather than receding from its tough bargaining stance at that point, how-ever, Qantas used its new position as a virtual monopoly employer to press ever more strongly for the wage freeze. The firm was looking for ways to cement its commercial supremacy and its enterprise bargaining negotiations provided an ideal avenue for cost cutting, particularly as employees had no viable alternative domestic employer to which to turn. At the same time, the firm played down its profit growth, given that ‘nothing is more sure to enrage a workforce being asked to make sacrifices, work harder and negatively adjust its conditions, than the smell of double-digit profit increases’.46Qantas pilots and domestic flight attendants
soon accepted the wage freeze and other trade-offs. For them, there were no other employment options, at least not within the country. Qantas found maintenance and clerical staff less obliging. Buoyed by the acceptance of a wage freeze by pilots and flight attendants, and to intensify pressure on these other workforce pockets, in mid-November Qantas used the media to announce plans to elimin-ate up to 2000 jobs before the end of the year. Qantas’s Mr Geoff Dixon, made the announcement just four days before 4000 workers were due to embark on a two-day strike over enterprise bargaining negotiations. Fears of job insecurity soon led Qantas staff to abandon their planned industrial action and agree to the wage freeze in return for postponement of the planned outsourcing.47
During the year, one of the Workplace Relations Club’s leading sites of experi-mentation, the Commonwealth Bank, abandoned its attempt to force its whole workforce of 28 000 out of unionised collective bargaining and onto AWAs. By agreeing to sign a union agreement it thus ended a long-running and bitter dis-pute it had created. A similar outcome occurred for another protracted disdis-pute, at Stellar Call Centres. Stellar is a vehicle through which its co-owner (and other site of Club experimentation), Telstra, had sought to weaken and cheapen its own workforce. Here management agreed to become party to the first award in the contract call centre industry. Workplace union activists and full-time officials man-aged to have a fiercely and actively anti-union management abandon the exist-ing individual contracts regime. Unionised employees also appeared to be gainexist-ing successes against determined employer attempts to strip back wages and condi-tions. Sunshine Sugar’s lockout of sugarworkers backfired on management in northern NSW when employees were able to win industrially. Even employees at O’Connor’s meatworks in Melbourne appeared to have won back something through the legal system after a three-year dispute that included a nine-month lockout and apparent strong, if covert, federal government support for the com-pany.48These are all telling defeats, particularly as they have created deep
work-force distrust and bitterness towards respective employers.
EMPLOYER ASSOCIATIONS AND THE CHANGING BARGAINING LANDSCAPE
which has remained closely aligned with Coalition policy and politics, has been pushing for greater access to AWAs, again misrepresenting its own research con-sultancy evidence to do so.49
AI Group, Australian Business and VECCI have encouraged members to see enterprise bargaining as more than an industrial relations exercise but one, as suggested by strategic human resource management theory, directly linked to business strategy.50 While this can provide further fee-paying business for
associations involved, it can also involve peculiar permutations in relation to non-union agreement making. For example, there is now ample evidence that while servicing employer members (or clients) in negotiations, part of their brief involves associations also playing many roles usually the province of unions or other employee bodies. Thus, the association may provide ‘independent’ information and advice to the company’s employees as to their legal rights and responsibilities in the agreement making process. It may also provide them with ‘independent’ training in bargaining, communication, drafting and reporting.51Just how
inde-pendent this can be is obvious. Without impugning the professionalism of associ-ation operatives involved, this represents a frightening conflict of interests, a distortion of the concept of ‘choice’ for employees regarding their freedom to associate and to bargain, and a fitting commentary on the ideological assump-tions of the Workplace Relaassump-tions Act.
Overall, decentralisation of bargaining and proliferation of its forms have con-tinued to be a two-edged sword for associations. Together with the rise in indi-vidual legal rights, they have forced associations to diversify services (or products) to members, in the process losing economies of scale. At the same time, these broader trends have weakened the impulses to membership among large and small companies. This places growing cost and revenue pressures on associ-ations that they are meeting in several ways. One is to seek growth and revenue by dramatically widening the scope of association activities. This may mean expanding the meaning of what membership brings or shifting emphasis away from a membership to a client-based orientation. Thus, growth can come through increasing membership, attracting commercial clients or both. Depending on the organisational model chosen and centrality of services provided, it may translate into providing a wider range of services on a high fee basis, fees supplementary to lower membership dues, or a full fee basis for non-member clients.
Interviews with association officials and perusal of print and web-based docu-ments suggest an essential continuity of previous years’ patterns. Australian Business remains the association that has moved furthest in defining itself as a business services company that provides services for fees. Yet even so, its 2000 survey of members showed that some 83 per cent viewed industrial relations as being the major reason for membership.52AI Group continues to stress the
the behest of its small firm membership base, increasingly re-focusing on indus-trial relations matters.53
Amalgamations and mergers have, in recent years, been another response to the challenges employer associations face. Yet another route for revenue gener-ation is the growing tendency for larger, broader and better-resourced associ-ations to become service providers for smaller, narrower associassoci-ations. These services can be part of a contract for service between the associations or may involve forms of membership affiliation—directly or through individual com-panies as members.54
Other factors that have contributed to dramatically declining union member-ship over the last 15 years also threaten employer associations. One is the chang-ing composition of the economy and the rise in service sector employment at the expense of manufacturing. This has meant that, like unions, the broadly-based employer associations have had to expand their recruitment, representative and service horizons towards emerging areas of employment. Here they have been able to gain from employer difficulties with, for example, unfair dismissal cases, but also from challenges that unions’ recruitment drives and bargaining initia-tives pose. Tourism and hospitality, financial services, call centres and inform-ation and communicinform-ations technology services have been the sorts of areas of growing activity for associations.55
FIGHTING TEST CASES
Employers faced a stream of test cases in the Commission through which the union movement sought to regulate key aspects of the employment relationship including safety net wages, casual employment and parental leave. While, accord-ing to one journalist, the Commission’s rulaccord-ing in the Metals Casual Case pro-duced ‘an unprecedented rift . . . between Australian employer organisations’, employers presented, for the most part, a staunchly united force.56
First on the agenda, in 2001, was the Metals Casual Case that the Manufacturing Union had launched in the Commission late in December 2000. Arguing that casual work is a precarious, disadvantaged and abused category of employment, the union had applied to regulate employer hiring practices and the payment of casual employees. While casual employees constituted only 10 per cent of the metal industry compared to 25 per cent of employees across all sectors, employers were wary of the claim not only for its potential implica-tions in that industry but also for its likely flow-on effects across other award-covered industries. United in their opposition to the claim, employer groups argued of dire consequences for the international competitiveness of Australian industry and reduced domestic employment prospects.
However, after the decision, employer associations took markedly different stances. AI Group’s Mr Bob Herbert ‘thought it was a good outcome for the metals and manufacturing industry’.57 In contrast, and predictably, his
such as the services sector, which had a relatively strong dependence on casual labour, ACCI stressed the urgency of considering casual award provisions on an industry-by-industry basis. It also urged parties to recognise that employees often prefer casual employment because of the greater immediate financial rewards they can attain in lieu of other entitlements.59 For ACCI, any regulation of casual
employment was devastating for Australian employers, whereas AI Group, pleased that employers retained considerable freedom to employ casual labour, suggested that regularisation of employment after six months was long ‘overdue’.60Since
then, employer groups have downplayed fears of any generalisation of the casual regulations across industry sectors. At the same time, they continue to voice opposition to such a development in response to the ACTU’s stated intention to extend the newly won provisions throughout the award-covered workforce.61
In an unusual instance of bipartisan collaboration, employers supported the ACTU-initiated test case on parental leave for longer-term casual employees. The test case sought to extend parental leave to employees who have worked for an employer on a regular and systematic basis for twelve months. While employer groups took issue with particular points of the claim, they did not oppose its central plank, the introduction of unpaid parental leave. ACCI, AI Group and the Australian Hoteliers’ Association each dealt with their points of contention by negotiation with the ACTU.62Such was the consensus, that the Commission
referred in its decision to the overwhelming support for the application. Following the decision, however, NSW Employers’ Federation’s Bracks broke ranks, reject-ing general implementation of the agreement because it strips away the distinc-tion between casual and permanent labour. 63
To some extent the general employer association consensus on this issue reflected an increased interest, within employer groups, in work and family issues, an issue that had been gaining increased exposure in the media and public policy discourse. That employers had reached agreement with the ACTU on some other potentially contentious issues—the ACTU’s application in May to increase minimum award wages for special disabled employees, the new national training-wage award, as well as the parental leave provisions for casual employees—signaled also that employers were entertaining a less combative approach in the Commission as well as in parliamentary politics. It also ties in with employers’ re-thinking about boosting the Commission’s role. 64
However, employers reacted with more hostility to the Safety Net Case which the Commission had commenced hearing in early December 2000. Groups such as Australian Business supported the need for a wage safety net, on the basis that failing to protect the needs of the weakest groups in the labour market would invite a return to centralised bargaining. In this, Australian Business gained con-fidence from a survey of its members in November that found that safety net adjustments were not a big concern.65However, Australian Business, AI Group
was also evidence of a shift in ACCI’s stance, perhaps due to pressure from its leading state affiliates. For the first time in many years, ACCI indicated its sup-port for a wage increase of up to $10 per week. To counterbalance this dramatic change, in flamboyant prose, it charged that the union movement, ‘does not give a hoot about the potential harm its claims may cause . . . There is thus a vacancy at the dead heart of the ACTU’s submission in which its own appetites trump every other consideration’. 67
Employers expressed disappointment with the Commission’s May decision to reject ACTU claims for a $28 per week increase for the lowest paid but instead to award increases of $13, $15 and $17 for employees on lower, middle and higher award rates respectively. The increases had, nonetheless, been higher than the amount that employer groups had considered the highest sustainable. ACCI particularly criticised the award of increases to higher paid employees, while the AI Group focused on the potentially dampening effect of the ruling on local bargaining. 68
THE‘REASONABLE HOURS’ TEST CASE
In recent years, there has been growing public and media unease at perceptions and evidence of worsening employment conditions. A leading source of this evidence has been the University of Sydney’s ACIRRT.69 The ACTU has
used ACIRRT and other research to great effect for its claims that Australian employees—blue and white-collar—are working longer hours than their counterparts in most developed nations and that this trend is worsening.70ACTU
publicity has particularly highlighted the growing trend to unpaid overtime worked. All this provided the ACTU with an unusual degree of media support when, in June, it launched a test case that seeks to have the Commission insert a Reasonable Hours clause into awards. The clause would prohibit employers from requiring employees to work ‘unreasonable’ hours (as defined) and it pro-vides additional paid leave entitlement for those working ‘extreme’ hours (as defined). In this, the ACTU had the support of the Labor governments in five states and the Northern Territory as well as the Catholic Church’s employers’ group.71
For their part, leading employer associations strongly contest the premises and details of the ACTU’s arguments and supporting evidence. They not only com-pletely repudiate the solutions the union movement is seeking, but have also advanced counter-proposals. They couch much of their policy stance in terms of ‘flexibility’ and ‘choice’ available to employers and employees and make much of the undoubted need of many employees for substantial overtime earnings.72
AI Group has taken a leading representative role in this process.73Having failed
restrictions on personal choice, the last summed up in AI Group’s slogan, ‘You can’t regulate against hard work!’.74
In the service of its arguments, AI Group commissioned a quantitative survey of employers from the University of Melbourne’s Associate Professor John Benson and a focus group study by ANOP Research Services. Benson’s research design curiously lumps together manufacturing employers and universities. In many ways, Benson found what one might expect to find when asking employers these sorts of questions. For example, few of their federal award employees work extreme hours; employers ensure overtime worked is remunerated, usually by penalty payments; employees can avail themselves of a range of flexible working time options; employee needs and considerations are important factors in the determination of working time patterns and the allocation of overtime and over-time decisions are usually made jointly between management and employees.75
What AI Group propaganda does not say (and Benson himself underplays) is the following: the vast majority of employers who responded agreed that most of the 15 criteria for ‘unreasonable’ hours in the ACTU claim were ‘appropri-ate’ and the vast majority could not envisage the introduction of those criteria bringing non-financial problems. Further, a hefty majority of employers endorsed the appropriateness of the ACTU claim’s two criteria for employees refusing employer requests for overtime work and could not envisage non-financial problems arising from the introduction of these criteria. Further, only a small minority foresee non-financial problems arising from the paid rest breaks pro-vision in the ACTU claim relating to ‘extreme’ hours. Finally, and perhaps most tellingly, a bare majority also felt that introduction of the ACTU claim would have no or only minor cost implications!76
These results do not square with the alarmist messages that employer associ-ations, and in particular, AI Group, are using to rebut the ACTU claim. This makes their vehemence on this issue perplexing. Employer advocates reject such regulation on the basis that it would impose substantial costs on employers and, by extension, the economy—a ready argument against any suggested improve-ment in employee conditions. Yet, their own evidence, and a survey of employ-ers to boot, does not at all support it. Overall, employer association arguments involve obfuscation and hypocrisy. They argue that overtime is not excessively worked and that it is properly remunerated. A complementary argument is that employees need and seek this paid overtime and more of it to maintain or raise their standards of living. Any restriction, they argue, would therefore damage employee interests and run against their professed choices. Yet, employer asso-ciations do not represent employees and typically gather their research evidence by asking employers their views. This method, as Buchanan and van Wanrooy point out, always brings quite different results from when employees are asked to speak for themselves.77Further, like Benson who is at pains to point out that
To take AI Group and ACCI at their word, if indeed it is so rare for award employees to work ‘extreme’ or ‘unreasonable’ hours, then the result of the ACTU’s (modest) proposal should be minimal and inexpensive to both employ-ers and employees. The same holds if most award employemploy-ers do in fact properly remunerate overtime work. In reality, the ACTU’s proposal would constrain those rogue employers (or managers) whose recourse to excessive hours raises work-place and environmental health and safety risks. It should also restrict the greater re-emergence of ‘sweating’ employers profiting from unpaid overtime. Other employers, allegedly the vast majority (as well as the affected employees, their families and the community at large) should gain from this removal of competi-tors who gain from unethical and even illegal practices. If, however, the provi-sion were to have a large effect, then the extent of ‘extreme’ or ‘unreasonable’ hours worked is in fact greater than employer associations have been prepared to admit.
Further, if ‘unreasonable’ hours of work are what employees really want, then ACCI’s contention that the provision opens up the possibility of endless litiga-tion makes no sense. Nor should it be beyond managers to make informed judge-ments on some of the criteria for ‘unreasonable’ hours: ‘the extent of night work’; ‘an employee’s workload’; and ‘work intensification resulting from understaffing’. Managers are paid to know these things and make reasonable judgements on them. Their employees’ health and safety, among other things, depends on it. No more convincing is AI Group’s further contention that sufficient, if fragmentary, regu-lation of working hours already exists. In mounting their arguments, on every point employer groups are trying to have it both ways and they cannot. This is particularly true of the larger picture: arguing in favour of streamlining and simplifying regulatory regimes where it suits them (awards, AWAs) and then insist-ing on the benefits of ad hoc-ery, duplication and inconsistency in other matters such as hours regulation.
ACCI and its leading state-based affiliates have jointly also lodged a set of counter proposals that would provide further forms of flexibility and choice within awards. Some of these are clearly biased towards employers and others would be of use and convenience to different groups of employees. In particular they suggest a form of annualised wage clause to include pre-determined overtime levels and which could also provide an overtime hours ‘bank’.79These are more
positive and forward-looking options and are similar to those that unions and employer associations have negotiated in some European countries. However, while attractive for their administrative simplicity, they completely fail to address the question of excessive hours and, in particular, of unpaid overtime.
NON-UNION BARGAINING FEES
bargaining agent’s fee. While unions had argued in favour of such a fee on a user-pays basis, the Employment Advocate had claimed that the clause was an objec-tionable provision because it contravened the freedom of association provisions of the Workplace Relations Act. In February 2001, the Commission dismissed the application, finding that while such clauses are intended to persuade or coerce new employees to join the relevant union, they don’t breach the freedom of associ-ation provisions in the legislassoci-ation. With wholehearted employer support, the Employment Advocate appealed the decision to the Commission, which, in June, raised a question that none of the parties, including employer groups that had made lengthy submissions, had addressed: whether the clauses pertained to the employment relationship. This question raised, for employers, the possibility of curtailing union access to protected industrial action, and hence evoked keen responses from the parties. While the Commission considered these responses, the federal government introduced the Workplace Relations Amendment (Prohibition of Compulsory Union fees) Bill 2001 in May. The Bill lapsed after referral to a Senate Inquiry.80Finally, in November, the Federal Court ruled that
bargaining agent’s fees are not a matter pertaining to the employment relation-ship. Accordingly, to the delight of employer groups, unions found themselves unable to take protected industrial action over claims for payment of such fees by non-union members, and further, such clauses cannot be included in certi-fied agreements.
During the year, employer groups urged members to reject union attempts to negotiate on bargaining fee clauses, while also frequently publicly voicing their opposition. Commerce Queensland, in supporting the federal government’s bill, described the fees as ‘compulsory unionism by stealth’.81 For AI Group such fees
were not only, ‘an anathema to the notion of freedom of association enshrined within the law of Australia’, they also forced employers to police the payments and hence virtually to act as union funds collectors.82 Employer groups belittled
unions, charging that it was the failure of unions to provide the services that members wanted, and not, as unions had argued, the ‘free rider’ problem of non-members gaining the same benefits as non-members through enterprise bargaining, that underpinned the drive to extract non-union bargaining fees.83 For
employ-ers, the focus on this issue may intensify in 2002, given that the federal Coalition government has signaled its intention to reintroduce legislation to prohibit bargaining fees.
WAVING THE WORK AND FAMILY FLAG
be increasing. Yet, most evidence pointed to an increasing imbalance between work and family for working parents, and minimal employer interest, if not out-right hostility to addressing the fundamental difficulties that working parents face in meeting the often-conflicting demands of these two spheres of life. That this is a key plank in the ACTU’s reasonable hours test case, which employer groups have vociferously opposed, suggests that for many employer groups, the com-mitment to resolving work-family pressures is largely rhetorical.
Perhaps more than any other event, the Australian Catholic University’s pro-vision of paid maternity leave to non-academic staff in August, served to high-light the diversity of employer perspectives. Through enterprise bargaining, the University had reached agreement that, upon completing two years’ service, its non-academic employees could avail themselves of three months maternity leave on full pay, followed by nine months maternity leave on 60 per cent of their wage. This is the most generous paid maternity leave provision in Australia to date. It was the University that had initiated the clause, not the union. It had done so with the intention of improving return-to-work ratios and becoming an employer of choice, but also to prevent disadvantage in the workplace: ‘the decision was made because it was right’.84Clearly, the University had tailored
the provisions to meet the particular needs of the organisation, which, in employer rhetoric, is the principal aim of a decentralised bargaining regime.
Yet the University attracted considerable criticism in the media, from ‘experts’ and ‘letters to the editor’.85 NSW Employers’ Federation’s Bracks eloquently
voiced his hostility to the notion of paid, and even unpaid, maternity leave. While claiming that even unpaid maternity leave imposed often ruinously dislocating costs and lost productivity on employers—a view he had expressed also in response to the Commission’s award of parental leave to casual employees in April—Bracks stressed that Australian industry would not remain internationally competitive if it sustained an across-the-board application of paid maternity leave.86
Supporting this view, ACCI’s Paterson charged that while the University could afford paid maternity leave benefits, ‘it’s a benefit that costs demonstrably and its not something that you can apply across the board’.87These groups may have
been responding to the exploding anxiety of members who, on reading of the University’s initiative, sought reassurance that the same would not be required of them.
Bracks argued that, compared to other countries, Australia’s maternity leave provisions were generous. However, as the media quickly highlighted, ILO research showed that, of 120 countries, Australia was one of only three not then providing paid maternity leave. Further, employers had not, on the whole, shown a readiness to improve maternity leave provisions through enterprise bargain-ing; paid maternity leave is provided in fewer than 10 per cent of federal enter-prise agreements and five per cent of state agreements. 88
that workers’ ability to improve work-family balance through exercising flexi-bility had fallen (under the Workplace Relations Act) since 1997.89
Employer groups had also been furious, in February 2001, about amendments to the NSW Anti-Discrimination Act outlawing workplace discrimination on the ground of carers’ responsibilities, bringing it into line with Western Australia, Tasmania and the ACT. The amendment would require employers to give serious consideration to employee requests for flexibility in working hours arrangements.90Employer opposition to the amendment starkly conflicts with
the fanfare attending ACCI’s National Work and Family Awards, at which Alcoa World Alumina Australia took out the award for overall outstanding achievement, on the basis of its flexible working hours arrangements and parental leave provisions. 91
THE(COLE) ROYALCOMMISSION INTO THEBUILDING AND
CONSTRUCTIONINDUSTRY
Since its election in 1996, the Howard government has repeatedly sought to attack remaining areas of union strength: building and construction; the waterfront, meat processing, metal manufacturing, the public service and coal mining. In doing this, it has on occasions met mixed responses from employers and their associ-ations. This was true regarding waterfront industrial relations in 1998 and 1999 and it was even more the case regarding the building and construction industry in 1999 and 2000. In each case, the then federal minister, Mr Peter Reith, was at loggerheads with some employers and their industry representatives over his insistence that he knew what was in their best interests.92In those cases and despite
his oft-expressed commitment to the absence of third party involvement, he sought to establish employers’ bargaining agendas and strategies in ways incon-sistent with their commercial circumstances.
His ministerial replacement, Tony Abbott, has returned to attacking union-ism in the building and construction industry but more indirectly and in a way that brings support rather than disagreement from employer associations.93
Nevertheless, his establishment of a royal commission under Justice Cole in July also brought a certain reticence from some of the larger construction corpora-tions. Cole’s brief is to inquire widely on a range of issues allegedly common in the commercial building and construction industries. In its inimitable way, the government has lumped together criminal (‘unlawful’) behaviour such as fraud, corruption and violence—with legitimate (but ‘inappropriate’) union activity that the government wishes to outlaw because of its effectiveness in winning employee demands. This plays well in Victoria where employers have complained of union intimidation and harassment. For its part, the Victorian Master Builders’ Association, which has suffered a couple of bad industrial defeats in recent years, called on the Royal Commission to recommend a national investigative task force for the industry, as the Gyles Commission had done in NSW some years ago.94
Substantive hearings only began in November and Cole is due to report at the end of 2002. For their part, AI Group and its affiliated Australian Constructors’ Association welcomed the Royal Commission as way of protecting the industry’s reputation.95However, one of the government’s intentions here, to get rid of
pattern bargaining, runs in the face of AI Group’s longstanding insistence on pro-ject level agreements on large propro-jects. As well, many of the largest construction companies clearly prefer practices that reduce a range of transaction costs in deal-ing with employees and subcontractors even if they appear ‘inappropriate’ accord-ing to the government’s industrial relations political correctness. This may well explain the initial preference of some of them (like their union counterparts) to seek to avoid appearing before Cole. Further, if the Construction Union is able to turn the Commission’s focus to alleged illegal employer practices including massive tax avoidance and widespread ‘serial’ insolvency, then employers may come to rue Abbott’s initiative.96
CONCLUSION
The majority of employers are apparently content to work with the range of options available to them under federal and state frameworks and are experi-menting with choices but only in marginal ways. While an adversarialist orien-tation remained strong among some of the larger employers in 2001, for most, it was a year of consolidation. The ingenuity and tenaciousness of trade unions in their use of industrial action and litigation, tools that employers had them-selves adopted with relish in 2000 to thwart and contain the bargaining power of unions, sent a cautionary message. As the tide of public approval showed signs of turning against employers, many drew back for reflection. In this process, some employer associations have been able to play a fruitful role by garnering research evidence, providing forums for debate, practical leadership and representation. At state level, employers associations have also had a number of notable lobby-ing victories in the face of activist Labor governments. This process will no doubt continue. It is the federal arena that is less easy to predict. With the re-election of the Howard government determined to further entrench its vision under the Workplace Relations Act regime, a Cole Royal Commission that may open a new dynamic in the builiding and construction industry, and a string of union indus-trial campaigns and test cases brewing, the behaviour of employers and their associations in the coming year is anything but predictable.
NOTES
1. Sheldon P, Thornthwaite L, ‘Employer Matters in 2000’. Journal of Industrial Relations43(2), 219–242.
2. Thornthwaite L, Sheldon P, ‘Employer Matters in 1999’. Journal of Industrial Relations42(1), p. 97.
4. We have derived information from interviews with: Dick Grozier (Director, Industrial Relations, Australian Business Industrial), 28 November 2001; Stephen Smith (Director, National Industrial Relations, AI Group), 5 December 2001; Philip Holt (former Chief Executive, Australian Business), 14 January 2002; David Gregory (General Manager, Workplace Relations Policy, VECCI), 31 January 2002; Bob Herbert (Chief Executive, AI Group) 22 January 2002; Maria Tarrant (Assistant Director, Business Council), 5 February 2002.
5. We would like to particularly thank Deputy President Hamilton for the continued assistance he provided us in our research over the past few years. Also, see Workplace Info(2001), ‘July 2001: the month of IR’, http://www.workplaceinfo.com.au/nocookie/alert/2001/01173.htm 6. ACCI Review, November 2001, pp. 1–5; Patrick A, ‘Big business puts PM on notice’, Australian Financial Review, 3 September, 2001, pp. 1, 16; Holt P, ‘ABL’s policy and lobbying agenda’,
Australian Business News, July 2001, p. 4; Bethwaite M, ‘Business Priorities 2001—up and running’, Australian Business News, October 2001, p. 30. The special issue of AI Group’s Industry
(August 2001) dedicated to a high profile ‘Forum 2001: Renewing the Nation’s Agenda’ only touched on industrial relations when a couple of speakers briefly mentioned the ongoing Manusafe campaign. Manufacturing employers were looking elsewhere.
7. See Way N, ‘Dis-unionity’, BRW, 9 March 2001, pp. 72–4. 8. Cited in Way N, ‘Common Ground’, BRW, 20 July 2001, p. 55.
9. ACIRRT, ‘More of the Same? Post-election industrial relations’, Workplace Intelligence, November 2001, pp. 1, 3–5; Patrick, ‘Big business’ p. 16; Tarrant interview.
10. ACCI Review, November 2001; Australian Business Ltd (2001), A Guide to the Policies of Australian Business Limited, http://www.australianbusiness.com.au
11. ACCI Review, June 2001, pp. 1–4; Norington, B., ‘ Business fears “disturbing echo” as unions move closer to Labor’, Sydney Morning Herald, 13 March 2001, p. 5; Skotnicki T, ‘Government and Business Merge’, BRW, 8–14 November 2001, p. 73. For AI Group’s non-partisan approach, see the statement of its Chief Executive, RN Herbert, Industry, October/November 2001, p. 4. For examples of Paterson’s approach, see Skotnicki T, ‘Why business fear Beazley’. BRW, 25–31 October 2001, p. 67, and Skotnicki T, ‘The pitch to business’,BRW, 8–14 November 2001, p. 70. For Howard’s scare-mongering, Peatling S (and Norington B), ‘The family man tends his brood’, Sydney Morning Herald, 29 October 2001, p. 11. 12. Way N, ‘Labor flunks its policy debate’, BRW, 8–14 November 2001, pp. 64–6; Industry Today,
September 2001, p. 6.
13. Skotnicki, ‘The pitch’, p. 68; Skotnicki T, ‘Down to work’, BRW, 6–12 December 2001, p. 33; Lahey K, Perspective, Radio National, Transcript, 6 November 2001, p. 2 http://www.abc.net.au/rn/talks/perspective/stories/s409784.htm;
Pascoe M, ‘What the New Howard Government Means for Business’, Business Sunday, 11 November 2001, p. 1 via ninemsn at:
wysiwyg://33http://finance.ninemsn.com.a…nessunday/Stories/stories/story_1531.asp 14. Skotnicki, ‘Down to work’, pp. 32–3; Gregory interview; Smith interview; Grozier interview;
Robinson P, ‘Building bosses urge end to “law of jungle” mentality’, Sydney Morning Herald, 11 December 2001, p. 2.
15. Dickens L, Hall M, ‘The State: Labour Law and Industrial Relations’, ch. 9 in Edwards P (ed.), Industrial Relations: Theory and Practice in Britain, Blackwell, Oxford, 1995, pp. 285–6; Edwards P, ‘Strikes and Industrial Conflict’, ch. 14 in Edwards (ed.), Industrial Relations, pp. 447–8.
16. Way, ‘Common Ground’, p. 57; Workplace Intelligence, July 2001, pp. 1–4; Herbert interview; Gregory interview;
17. Norington B, ‘New IR panel stacked with bosses, say unions’, Sydney Morning Herald, 29–30 September 2001, p. 11.
18. Grozier interview; Gregory interview; Smith interview.
19. ACCI, Annual Report, ACCI, Melbourne, 2001; AI Group, Annual Report 2001, AI Group, Sydney, 2001; Bethwaite, ‘Business Priorities’; Grozier interview; Herbert interview; Holt inter-view; Smith interinter-view; Gregory interview.
20. Rubenstein J, ‘Rhetoric versus Reality’, Australian Business News,August 2001, pp. 14–5; Grozier interview; Industry Today, May 2001, p. 7.
