PETERSHELDON* ANDLOUISETHORNTHWAITE**
E
mployers and their associations found themselves in a more complex environment largely of their own making. Desired change through the federal system appeared too incremental yet repeated association calls for a hardening of the Workplace Relations regime fell foul of the Senate. At state level, policy backlashes have all but removed neo-liberal gains of the last decade. Developments in the building industry present an anti-union federal government, associations and adversarial companies with their best chance to extend the effects of the 1996 Act. In general, associations indulge in a neo-liberal form of rentier policy pleading while unions continue to make gains in unlikely circumstances.INTRODUCTION
Commenting on employer matters in 1999, we pointed out that employers and their associations, recently so triumphant in legislative and policy terms, faced challenges from growing popular unease. This unease derived from perceived rising employment insecurity and inequality, most obviously manifest in extortionate executive remuneration and loss of entitlements suffered by employees of failed companies. Since then, we have identified how this has fed an electoral tide favouring policies that reverse neo-liberal (or ‘economic rationalist’) policies in industrial relations.1 Prime Minister John Howard’s
exploitation of moral panic over asylum seekers allowed him to retain power in November 2001 but, wherever his Liberal/National coalition could not so mobilise public opinion, the trend has been irresistible. State Labor governments have rolled back previous neo-liberal experiments, in some cases adding additional spheres of employee protection and they have together backed the Australian Council of Trade Unions (ACTU) claims within the Australian Industrial Relations Commission (Commission).2
Evidence of this shift is that former masters of the neo-liberal policy universe, the ‘Workplace Relations Club’ (Club)3appear to be shifting jobs faster and in
ever-tighter circles. Apart from federal Workplace Relations Minister Tony Abbott’s office, the Australian Chamber of Commerce and Industry (ACCI) and the National Farmers’ Federation, options are shrinking. State government roosts are no longer available and large corporations seem less inclined to avail themselves of the industrial relations depredations that seem to flow from hiring Club members. Abbott’s generous patronage has allowed well-remunerated,
secure public sector employment—notably within the Commission—for some of these free labour market partisans.
The opportunities that the Cole Royal Commission provided employer associations during 2002 (see below) were a reminder of what Club influence appeared to offer employer associations beguiled by its call. With this (important) exception, association adhesion to the Club agenda proved counter-productive as the counter-trends proved irresistible. Having pushed since 1999 for more extreme amendments to a federal Workplace Relations Act 1996 (1996 Act) already massively biased towards them, employer associations now find their policy credit largely exhausted in a policy climate polarised on party lines and subject to legislative backlash. In vain do they bemoan a loss of policy bipartisanship they themselves greedily undermined and which, in cahoots with a vehemently anti-employee federal government, they continue to erode. As one leading association official noted, the 1996 Act remains more politicised than its union-friendly New South Wales contemporary, a pattern also largely true for Queensland.4Arguably,
by trying to get legislative change on every issue that vexes them, employer associ-ations have missed out on winning anything recently, including small employers’ ‘holy grail’, exemption from unfair dismissal provisions. They have campaigned loudly but poorly on this issue, inviting withering scrutiny from the media and crucially important Australian Democrat Senator Andrew Murray.5
State level rollback of neo-liberal regulation has negated some of the Club’s impact at the federal level. Further, many employers face increasing regulatory and jurisdictional complexity through falling under discordant state and federal systems. Federal Commission and judicial decisions have provided further unexpected anxiety in employer associations’ battle for regulatory dominance. Among such judicial interpretations, during 2002, the Federal Court in Emwest seemingly gave the green light for unions to take protected industrial action during the life of an enterprise agreement, provided that the action concerned bargaining over issues not contained within the agreement.6Employer
associ-ations have also been alarmed about decisions regarding union bargaining fees (see below).
Employer representatives have adjusted to this political and judicial reality in different ways. While some members would prefer otherwise, the (big) Business Council of Australia (BCA), having achieved much of its ambitious agenda at federal level, has removed industrial relations as a priority area. Given current Labor state governments and Senate opposition, BCA activism on behalf of its major remaining industrial relations policies (including a unitary legislative framework) promises greatly diminishing returns. Instead, the BCA has enhanced its focus on education and training (see below).7
further criminalising union activity widely considered to be defining pillars of democratic societies and legitimated under International Labour Organisation core conventions.8Moreover, major associations continue under the
misappre-hension that they are not intellectually and politically responsible for the increased litigation and legal adversarialism that has unsurprisingly emerged since the 1996 Act shifted activity from a negotiation-oriented tribunal system to ‘real’ law in the mainstream courts.9
Otherwise, the year appeared notable for fewer big clashes and a general settling in crucial areas related to bargaining. Some association officials suggested that this reflected a maturing of the system as many previously unclear matters received clarification. There were also moments of (predictable) irony. One involved the Australian Mines and Metals Association (AMMA), an association with policies at the very extreme neo-liberal end of the Club. Long obsessed with decentralised bargaining, it has now identified widespread ‘enterprise bargaining fatigue’ among participants. It wants Abbott to amend the 1996 Act to allow agreements to last up to five years rather than the current three. As was always obvious, ‘enterprise’ bargaining is merely a bargaining level. It indicates nothing about bargaining content or tone. Anti-union employers in a unionised industry are always likely to meet ‘conflict based bargaining regimes’, the like of which AMMA seeks to soften by lengthening agreement duration. It has similar hopes for reducing enterprise bargaining’s (equally predictable) high transaction costs for employers.10
The main changes in personnel within employer associations concerned ACCI. At the start of the year, Peter Anderson, formerly of Ministers Reith and Abbott’s office, replaced Brian Noakes as Director, Workplace Policy and Scott Barklamb, previously with the defeated Court West Australian government, took over as Manager, Labour Relations, filling the vacancy left when from Reg Hamilton accepted an appointment as Deputy President of the Commission. In mid year, Peter Hendy, a career public servant, filled the Chief Executive position left vacant by Mark Paterson’s appointment to a senior public service position.
We again largely concentrate on the activities of the major national associ-ations—ACCI, AI Group and the BCA—and on the most important state-level associations—the Victorian Employers’ Chamber of Commerce and Industry (VECCI), Australian Business Limited (ABL) and Commerce Queensland. Because of the prominence of building industry matters during 2002, we also discussed issues with the Master Builders’ Association (MBA). Finally, for the first time, we deal with vocational education and training in some detail. We would like to express our gratitude to all the association officials who once again generously gave of their time and patience.11
EMPLOYER CHOICES OF INDUSTRIAL INSTRUMENT AND CONFLICT
the 1996 Act, and underpinned by the award system. A more contentious instru-ment is the (largely) individualised, award-free and secret Australian Workplace Agreements (AWAs), which the government hotly favours, massively propagan-dises and subsipropagan-dises (with PAYE employees’ taxes). Finally, there are the various ways that employers can seek prosecution against or to litigate over union activities. Employer anti-unionism, either through litigation or lockouts, can produce conditions for s. 170LK agreements or AWAs. In previous years, we commented on strategic employer anti-union adversarialism, particularly by very large corporations.12These generated some long and bitter disputes, which
unions often successfully met through improved organisational effectiveness and creative legal approaches. In fact, frontal adversarialism appears to have done more to overcome entrenched inter-union hostilities than decades of ACTU congresses. During 2002, open employer adversarialism declined and some of its principal earlier antagonists appear, for the moment at least, reconciled to negotiating with unions. Moreover, in important sectors, pragmatic employers have remained deaf to federal government entreaties to volunteer their firms for the front lines of pitched class warfare against employees and their unions.13As a result, employer
choices of instrument show incremental rather than dramatic change.
Small employer preferences appear to have generated strong growth in (unregistered) common law contracts of employment rather than AWAs.14
Employers have signed up very few non-managerial employees on AWAs but their use has important strategic implications. Employer association and federal government rhetoric suggests that they are an instrument of choice but employers can impose them on starting employees whose only redress is to decline employment.15 Employer AWA initiatives regarding non-managerial
employees almost entirely focus upon actively unionised workforces. Why would unionised employees be so much more likely to choose AWAs than the non-unionised who ostensibly have a ‘better’ direct relationship with their employers? As David Peetz makes clear, employers have used AWAs (or similar state-level registered individual contracts) as a union-avoidance strategy, fulfilling the obvious intent of the Act’s framers and their employer association cheer-leaders.16A typical employer strategy is to enter bargaining with little or no
inten-tion to really bargain. Unions receive a take-it-or-leave-it offer and, feigning frustration with union intransigence, employers then offer their workforces more generous pay as a reward for agreeing to registered individual contracts.
More consistent and impressive has been the growth in non-union s. 170LK enterprise agreements certified. In the year ending 30 June 2002, the number grew some 20 per cent over the previous year (1087 instead of 908) and 40 per cent over the previous two years.17Certification only proceeds following
non-union) is spreading to firms with no history of it. Where, however, employers have sought to use this instrument to stymie real bargaining with unions and legitimate union representation, they often fail and exacerbate workplace tensions. During 2002, there were a number of clamorous examples including, once again, Minister Abbott’s own Federal Department of Employment and Workplace Relations. Of the 65 per cent of the workforce who voted, 90 per cent voted down management’s proposed s. 170 LK agreement.19Towards year’s
end, a growing number of subcontractors in the commercial building sector gained s. 170 LK agreements, apparently in the union-busting shadow of the Cole Royal Commission and the Building Industry Taskforce (see below).20
Union-negotiated enterprise agreements still remain easily the most represen-tative bargaining instrument. While their number declined (16 per cent) to 4321 during the year to 30 June 2002 compared to the previous 12 months (5147), they were still well above the level certified during 1999/2000 (3536). As the Commission pointed out, these fluctuations appear to have much to do with the timing of agreement renewal in certain industries.21Of particular interest was
that important employers, like Telstra and the Commonwealth Bank, who had only recently embarked on bitter de-unionisation campaigns, reached enterprise agreements with unions after relatively little aggravation. At smaller companies, as in the paint industry, where the previous bargaining round had been bitterly conflictual, the start of a new, union-initiated pattern bargaining round has also been largely conflict free.22
Equally notable were events in the remote Pilbara mining region. During 2002, BHP Iron Ore’s controversial November 1999 de-unionisation strategy finally succumbed to local union activism, new state legislation and a decision of the West Australian Industrial Relations Commission.23 Moreover, BHP’s close
competitor and anti-union pathbreaker, Rio Tinto, after a decade of non-union individual contracts, suffered a humiliating setback in trying to shift from Western Australia’s individual contracts to less controversial federal non-union enterprise agreements. In voting, employees apparently vented their frustrations with how arbitrary managerial prerogative had replaced a high trust approach.24By year’s
end, both BHP and Rio shifted to offering AWAs but activist unionism had strengthened at the first and had regained a symbolically important foothold in the second.25
Employer associations continued to assert that, in principle, they favoured maximum choice for employers and were agnostic about whatever choices members made. However, this is not at all apparent from their evidence to the Cole Royal Commission (below). Further, federal legislative constraints greatly restrict any preferences that employers (and their associations) and employees (and their unions) might express for multi-employer agreement making.26
EMPLOYER ASSOCIATIONS AND STATE LEVEL INDUSTRIAL RELATIONS
South Australia, the Stevens Report to the new Labor government in November. Both caused consternation in employer association ranks. The first, redresses a decade of blatant regulatory anti-unionism by, among other things, expanding union operational rights and the role of the state commission and phasing out registered state individual agreements. The second proposed many legislative provisions that meet union demands.27
Elsewhere, state employer associations have largely learned to live pragmatically with Labor governments that have, themselves, softened their pro-union activism after short periods in power. Some associations, in fact, have decisively warmed to Labor governments that share their policy directions in areas outside (and perhaps more important than) industrial relations legislation.28Areas
of disagreement naturally remain. During 2002, for example, Commerce Queensland led opposition to a union application before the Queensland Commission for a new Termination, Change and Redundancy ruling that would anticipate matters federally (see below).29While this is a major case, particularly
for small business, Victoria’s situation had more dramatic implications and therefore merits separate treatment.
Victoria
During 2001 and 2002, Premier Steve Bracks’ minority Labor government tried to meet union demands for the re-establishment of an extensive tribunal system for Victoria (Fair Employment Bill) and for the criminalising of employer culpability in workplace-related deaths and serious injuries (Industrial Manslaughter Bill). Employer associations, particularly VECCI and AI Group fought each bill tenaciously and, in each case, gained support from the opposition-dominated upper house, which defeated the bills. Prior to the election, the upper house also voted down the Federal Awards (Uniform Systems) Bill, a much less ambitious replacement for the Fair Employment Bill.30The
Uniform Systems Billwould simply have extended existing federal awards to the approximately 50 per cent of Victorian employers previously exempt. While VECCI criticised the cost implications for its many smaller members enjoying cut-price workforces, many other VECCI members were paying higher labour costs under the mainstream federal system. AI Group was sympathetic to an initiative with little negative impact on its members but that met its preference for developing a unitary national system.31
Labor’s resounding re-election on 30 November came despite its opponents’ (and federal minister Abbott’s) desperate attempts to make industrial relations their central scare issue of the campaign.32Despite involvement in recent policy
conflicts, VECCI took a neutral electoral position on industrial relations—‘open to consider constructive suggestions about possible changes’33—including the
manufacturing. Noting that this government presented itself as otherwise business-friendly, VECCI even conceded that some ‘legitimate concerns’ lay behind the defeated bills.34
Employer associations are clearly relieved by the re-elected government’s much softer industrial relations agenda. It has replaced the Industrial Manslaughter Bill with milder improvements to workplace health and safety legislation and its plan to re-introduce the Uniform System Bill meets most association objections. Although Abbott previously refused to accept referral, employer associations would prefer collaborative referral of state common rule powers to the federal system to cover those Victorian employers presently outside it.35
CAMPAIGN2003
Looming as a source of considerable trepidation for many employers was the manufacturing unions’ Campaign 2003. With more than 1100 manufacturing industry agreements due to expire in the first half of 2003 (including 500 in Victoria), AI Group sank massive resources into encouraging members to resist union pattern bargaining initiatives and into building a support base for the coming struggle. In late 2002, AI Group held well-attended regional briefing sessions with members, organised training programs, workshops and strategy sessions. It has also developed information booklets and fact sheets, a dedicated website and enterprise agreements database.36
Component manufacturers are a central and vulnerable union target given their strategic position in carmakers’ just-in-time supply chain. Major disputes at component-makers, such as Tristar and Walker Australia, in 2001 had dramatic impacts on car making. The four local car manufacturers will not directly face Campaign 2003 as their agreements expire later but, during 2002, they were instrumental in the joint establishment—through the Federated Chamber of Automotive Industries and the Federation of Automotive Products Manufacturers—of a contingency fund to support components manufacturers facing Campaign 2003 bargaining. The fund was a sop to federal government insistence on employers fighting Campaign 2003 pattern bargaining in return for a 4.2 billion dollar industry assistance package. It is unclear whether automotive industry employers will risk a particularly adversarial strategy against Campaign 2003. Car manufacturers have little interest in damaging their own relationships with unions and have no wish to volunteer their components suppliers for Abbott’s battle against pattern bargaining.37
Factional infighting that has riven the Victorian branch of the Australian Manufacturing Workers’ Union caused particular concern to Victoria’s manu-facturing employers. AI Group and VECCI both appreciated developments during 2002 that weakened the Workers First faction’s influence within the union. However, both anticipate that the factional sparring of 2002 will inten-sify the ferocity of Campaign 2003 in Victoria as non-Workers First officials attempt to match their factional rivals’ militancy.38Despite federal government
seem more flexible than those in building, this may explain why, towards the end of 2002, some AI Group members from the engineering construction sector formed a splinter group to discuss a pattern agreement with the former.40
COLE ROYAL COMMISSION INTO BUILDING AND CONSTRUCTION
The establishment of this royal commission was a highly partisan act by Minister Abbott seeking to damage the Labor Party and crush building and construction unionism. The wording of its terms of reference thus directed the Royal Commission to investigate ‘unlawful or otherwise inappropriate industrial or workplace practice or conduct’. What ‘inappropriate’ meant was left unclear but further wording indicated a range of issues that went to the heart of legitimate and legal union behaviour. In this age of industrial relations political correctness, it means behaviours Abbott dislikes and has been unable to ban because of Senate obduracy. Much of Abbott’s rhetoric, Royal Commission endeavour and employer association claims have focused on demonising union pattern bargaining activity and on union job control over health and safety and other issues. Most of the other terms of reference were clearly targeted at setting up the building unions rather than tackling bigger but more complex problems in the industry.41
The appointment of Terence Cole QC as Royal Commissioner was an inspired choice and Abbott proved extravagantly generous, on taxpayers’ behalf, in his funding of Cole and a make-work program for QCs and barristers. Cole soon made it clear that he had no grasp of the history, political economy or sociology of the industry and that he was uninterested in gaining one. Further, his royal commission’s modus operandi was a legalistic form of tabloid ‘ambulance chasing’, of piling up particular cases, in an unreflective way, to infer a picture rather than more properly using social science to paint one. Commissioner and Counsel followed Abbott’s script in conflating illegality and inappropriateness so that the process became a game of criminalising (unionism) by numbers made worse by Cole’s determined insistence on greatly limiting unions’ ability to cross-examine their accusers. Even some employers and association officials (privately) acknowledged that, from conception, the Royal Commission’s agenda was to traduce building unionism as a prelude to its criminalisation.42
out criminal elements within their ranks. Abbott, the Royal Commission (and employer associations) chose to highlight headline incidents rather than constructively work towards improving the industry for all parties.43
The starkest contrast possible was the work, during 2000–2001, of a Queensland government (tripartite) Building and Construction Industry (Workplace Health and Safety) Taskforce (Crittall Review). The chair, John Crittall, although having had a strong employer association background, sought and gained the cooperation of all parties in a concerted attempt to improve one of the industry’s worst elements, where ‘people working in the industry are twice as likely to be killed at work than the all industries Australian average’. Unlike Cole, Crittall’s taskforce was deeply knowledgeable about the industry. At a tiny fraction of the cost of Cole’s Royal Commission, it systematically investigated relevant industry patterns as a basis for intervention strategies to ensure minimisation of risk exposure and to ‘improve compliance levels of all parties’.44 Employer representatives took a more enlightened approach to
Crittall’s taskforce than to Cole’s commission. This indicates their lack of measure and self-reflection when anti-union ministers, like Abbott, give them their head.
From the start of Cole’s substantive hearings in November 2001 until their conclusion on 18 October 2002, employer associations got the uncontested space that was denied to them in other forums. Single employers, particularly larger ones, were unenthusiastic about formally participating and employer associations acted in their stead. Again, this highlights how, in spite of all the ‘enterprise focus’ rhetoric, some associations are busier then ever as employers choose to use them for controversial or broader representative issues. The MBA and AI Group, competitors in this industry, were the main contributors, each making a number of major submissions. Each also took full advantage of the opportunity to disingenuously play to Cole’s instincts regarding ‘inappropriate’ behaviour. Both also did much to actively inform their memberships on policy, submissions and proceedings.45
The main associations clamoured for Cole (and Abbott) to clean up their problems. A national MBA position emerged from discussion among state MBAs although some of the latter also made submissions. The tenor of the national position comes from its first Key Recommendation: ‘a reduction or curtailment in the market power and dominance of unions, in particular the CFMEU, and its exercise.’46 MBA reasoning draws from biology rather than
but is aimed at buying the loyalty and obedience of rank and file union members at the expense of the Australian community’.47
Both the MBA and AI Group wanted a construction industry taskforce to investigate and report breaches of various laws (and the MBA wanted it to have enforcement powers). Both, and in particular AI Group, wanted to strengthen the Commission’s role through a major projects tribunal or division within the Commission to deal expeditiously with issues. Further claims included amendments to the 1996 Act to outlaw protected action furthering pattern bargaining, and stamp out coercive conduct and ‘inappropriate’ workplace behaviour. Both called for much more rapid judicial responses to unprotected union action with the MBA intent that these matters go directly to court and that ‘penalties for unions and their officials [be] commensurate to the commercial loss suffered by employers as a result of unlawful and inappropriate[our italics] action’. Moreover, AI Group called for changes to the 1996 Act to allow project agreements that would bind all subcontractors for the life of major projects. This would answer the lack of fit, for employers (and unions), between enterprise bargaining and the industry’s dominant subcontracting model. AI Group also urged that protected action not be available during negotiation of project agreements and that such agreements include an enforceable ‘no extra claims’ commitment.48
Given that letting of contracts to subcontractors would follow such project agreements, the making of project agreements would precede the hiring of most of any project’s workforce. This, together with restrictions extra claims and on pattern bargaining, would effectively deprive all employees on major projects (and by extension, in the wider industry) of the right to strike. It also would deprive them of any say over project agreements they were to work under and of the ability to set a reasonable industry-wide floor under those agreements. Given skills shortages and in the absence of the right to strike, another outcome would be greatly increased labour turnover and the (often ignored) employer costs involved. AI Group argues that such an abrogation of fundamental democratic rights of employees is in the public interest, which they clearly equate with the interests of property developers and commercial builders. Fundamental to this is that they are opposed to pattern bargaining because it allows employees to better their wages and conditions.49Unlike AI Group, the MBA rejected the necessity of
project agreements in favour of ‘choice’. This may reflect the MBA’s much stronger membership base among smaller sub-contractors.50
As journalist Nicholas Way pointed out, all this runs against associations’ usual agenda for lessening tribunal powers.51It again suggests that association policy
regarding occupational health and safety (OHS) research. Again criminal and ‘inappropriate’ activities are on the agenda and the taskforce seems particularly intent on getting at unions through the industrial relations policy nexus between head contractors and their subcontractors.52
Cole (partially) accepted union claims regarding OHS and there is a hope that this may lead, eventually, to a national OHS regulatory framework. He also entertained union complaints about security of payments to sub-contractors, sham categorisation of employees as self-employed or subcontractors with consequent tax evasions, payment of workers’ compensation premiums and non-payment of employee entitlements. On these issues employer associations were near to silent, jeopardising future opportunities to take the high moral ground in arguing their legislative case before a skeptical Senate.53
Most hypocritical though was the insistence of associations that employers— not employees and their unions—should control the selection of site safety representatives. The pretext was disengaging workplace health and safety from industrial relations (and union power) even though it is precisely this nexus that has so greatly improved OHS in this and other industries. AI Group even argued for managerial prerogative because ‘(E)mployers carry the risk for OHS on a project’.54Mortality and injury statistics would suggest the opposite as would
successful employer association pressure against industrial manslaughter bills. One of the MBA and AI Group’s principal alternatives was for government inspectors to get greater powers and to display greater activism. This is contrary to evidence from the industry’s history and of contemporary developments in other countries. What made it even more remarkable was that, in the Queensland context, AI Group protested against a proposed legislative extension of govern-ment inspectors’ powers that flowed from the Crittall Review.55
Cole is to report in late February 2003. His royal commission operated in the context of an almost unheard of boom in building and construction in most capitals, record company profits and severe skilled labour shortages so that any action is likely to bring union reaction.56During 2002, building unions defiantly
launched their 36 hour week campaign. To the irritation of AI Group and the New South Wales MBA, unions also won industry pattern bargains in Victoria from the National Electrical Contractors’ Association and from the Victorian MBA. In particular, that with the MBA means that Victorian industry expiry dates mesh with those in the rest of the country.57
FIGHTING MAJOR TEST CASES
Reasonable hours test case
Employer associations maintained their strident opposition to the ACTU’s (un)reasonable hours test case before the Commission. They continued their arguments from 2001, focusing on costs to employers, the claim’s allegedly rigid ‘one-size-fits-all’ approach, the potential for greater litigation and, increasingly, lost overtime earnings for employees.58ACCI and AI Group, which both invested
evidence that large numbers of employees are working longer hours, that these hours are increasingly unpaid and that they are unhappy about it.60Associations
were very pleased that the Commission rejected all the ACTU’s main claims and merely clarified employee rights to refuse unreasonable overtime.61
Less reassuring were Commission findings about escalating hours of work and their effects on employee health and lifestyle. Unions have clearly signalled that work–life balance is a central claim both through enterprise bargaining and campaigning for statutory paid maternity leave (see below). Strategically, this may force employer associations to choose between championing ‘good employers’, at the expense of more exploitative ones on issues such as unpaid overtime, or face insurmountable community pressures for tighter legislation affecting all employers.
Safety net
When the ACTU launched its 2002 ‘living wage claim’ for a $25 weekly wage increase, the confident prediction from BRWto the business community was for only a modest increase. Employer groups generally supported a $10 increase.62
Beyond that consensus, their positions diverged. AI Group joined the federal government in arguing that, rather than increasing nominal wages, debate should focus on delivering higher real incomes to wage earners through adjusting taxes and welfare. AI Group effectively countered ACTU arguments that this sounded like a wage freeze. It pointed out that tax payments and loss of welfare benefits would erode any gains coming from a living wage increase and that the ACTU should not delude its employees otherwise.63 This was the second
consecutive year that ACCI followed a more realistic course. In calling for a ‘responsible, conservative approach’, it reiterated its mantra that any wage increase should be linked to productivity growth. In this case, any increase above $10, would fuel unemployment and inflation, and be a disincentive to enterprise bargaining.64
Employer groups were unhappy with the Commission’s June decision to award an $18 safety net increase but it was the Commission’s reasoning rather than quantum of increase that most unsettled them. The Commission had largely rejected their pessimism concerning the macro-economic effects of wage increases and their proposed wage fixing criteria. Attacking the decision as ‘out of step with the IRC’s role in wages policy’, ACCI warned of dire consequences for the economy and the low paid.65Divergences in employer stances have
con-tinued in early responses to the ACTU’s recent safety net claim for 2003. ACCI has stridently opposed the wage claims for low paid workers, as ‘excessive and ambitious’, and displaying a ‘certain element of opportunism’ by the ACTU. Once again, AI Group has raised the poverty trap argument as well as arguing that the ACTU has understated the impact of flow-on costs of wage increases for employers. 66
Non-union bargaining fees
Employer groups’ delight in late 200167 with Justice Merkel’s Federal Court
was short-lived. In June 2002, a Federal Court full bench found that unions could take protected industrial action in support of genuinely made claims, including bargaining agents’ fees. Describing the decision as ‘an example of judicial activism’ that provided a back door for compulsory unionism, ACCI called on the govern-ment to reassert ‘control’ over the 1996 Act through immediate legislative reversal of the Court’s decision.68On behalf of Electrolux, AI Group appealed
to the High Court principally on the ground that paying bargaining fees to a third party was not part of an employment relationship and this matter will unfold during 2003. Calming employers’ fears over the Federal Court decision, the Commission subsequently refused to certify numerous agreements that contained bargaining fee clauses. In this, Deputy President Hamilton was prominent, winning hearty applause from employer bodies and provoking an appeal from unions. AI Group and the federal government defended the unsuccessful appeal as a full bench confirmed Hamilton’s position.69
Seeking to forestall union claims for such fees in the New South Wales jurisdiction, following failed union attempts before the South Australian and Queensland tribunals, ABL joined with the National Electrical Contractors Association to lobby for inclusion of an anti-bargaining fee principle in the enterprise agreement approval process in New South Wales. While unsuccessful, the resultant principles provide an opening for employers to argue against the inclusion of bargaining fees on a case-by-case basis.70
Termination, change and redundancy
Employers’ interest in the issue of employee entitlements shifted in 2002, from how best to protect entitlements in cases of corporate insolvency to the question of employees’ entitlements in situations of termination, change and redundancy (TCR). This shift followed the ACTU’s claim before the Commission for improvements to minimum award entitlements established in the 1984 Termination, Change and Redundancy Decision. The ACTU’s re-embracing of TCR issues was strategically timely given the number and seriousness of high profile staffing contractions in 2001, the string of sensational corporate failures and the tentative resolution of the employee entitlement issue through a scheme the federal government introduced in late 2001. Echoing the current situation in New South Wales, the ACTU’s claim included demands to double the minimum severance pay entitlement from 4 to 8 weeks, compensate employees aged over 45 years for their reduced employment opportunities, extend the entitlements to casual employees, and include small businesses. Although Commission hearings were not to begin until 2003, the ACTU’s claim sparked a flurry of employer activity, which intensified when the matter reached test case status in Queensland.
but continued to fully oppose all other union claims.71AI Group proposed that
awards be amended to include separate provisions for insolvency-based redun-dancies and those for other reasons. AI Group also suggested greater protections for employers, including explicit exclusion of redundancy entitlements for employees in cases of transmission of business—an issue at the heart of a continuing dispute that began when the Commonwealth Bank outsourced information services functions to EDS in 1997.72Given that the ACCI blueprint
talks of employers having a fundamental right to restructure business without third party interference, it is not surprising that ACCI’s counter claim went further than other employer groups’ in claiming unfettered management rights to cut labour. However, since then, ACCI also proposed that longer service periods be required for eligibility to TCR entitlements and employers in depressed or failing industries be allowed to seek exemption or reduction from redundancy payments when unable to pay. At the very end of 2002, conciliation before the Commission brought agreement on some issues between AI Group and ACCI (representing employers) and the ACTU but important differences remain for resolution during 2003.73
Association determination in pushing for enhanced employers’ TCR pre-rogatives seems rather disingenuous when placed alongside other events and developments in 2002. While there were fewer high profile staffing contractions and scandals over executive salary levels in 2002 than in 2001 (and even signs of some moderating in executive pay rises) there were enough to keep fuelling public disquiet. One of the most publicised cases was that of AMP which announced several rounds of large-scale retrenchments in 2002 but suffered embarrassing speculation concerning a rumoured 20 million dollar termination payment to its (sacked) chief executive.74 Perhaps the most sensational case
demonstrated the lengths to which some employers will go to avoid paying employees’ entitlements. In March, Coogi Nominees transferred 240 employees to shelf companies with no assets, effectively denying them their accrued entitle-ments when it went into liquidation. In the Federal Court, Justice Merkel scathingly charged the company with treating its employees like ‘serfs rather than free citizens’, and, ruled that it could not arbitrarily transfer employees to another company without their assent.75
PAID MATERNITY LEAVE
existing family welfare budget.76For its part, ACCI remained unconvinced that
paid parental leave was the most equitable and efficient means of delivering social support for parenting, and it criticised government-funded schemes overseas, claiming that they provided a disincentive to employment. Throughout the year, some employer associations, essentially (but unfashionably) opposed to paid maternity leave, fanned the flames of fear, particularly among small and medium employers, by suggesting that the review would recommend that employers carry this financial burden.77
ACCI, AI Group and ABL were particularly anxious that any new maternity leave scheme should include protection for employers against industry-wide union campaigns and Commission test cases to extend maternity benefits. Again arguing against ‘one size fits all’ policies, they insisted that additional benefits should derive only from enterprise bargaining: any compulsory topping-up through the industrial relations system should be prohibited. ABL proposed that the federal government exclude paid maternity leave as an allowable award matter, to preclude unions winning above test-case standards in awards.78
Mysteriously, given the facts, ACCI also viewed the current universal unpaid leave entitlement of 12 months as extremely generous by international standards. Accordingly, it also criticised, as ‘utterly impractical’, a foreshadowed ACTU test case to extend unpaid maternity leave entitlements to three years (or five years through negotiation) and provide other benefits in terms of access to part-time work, family-friendly rosters and flexible annual leave options. When the ACTU refined its claim, for example reducing the leave entitlement sought from three to two years, ACCI Chief Executive, Peter Hendy countered by asserting that Australia ‘does not have the luxury to fiddle around with this narrow agenda’.79
By recommending that the government fund a 14-week paid maternity leave scheme, the Sex Discrimination Commissioner’s final report allayed employers’ greatest fears. Once again, there were also differences among associations. While AI Group’s Chief Executive Bob Herbert applauded the report, ACCI’s Hendy damned it with faint praise and criticised it for failing to close the door on employees negotiating top-up conditions directly with employers—a remarkable exercise in double-think, given ACCI’s much-touted attachments to choice and enterprise bargaining.80For many employers, it is the legacy of the
Sex Discrimination Commissioner’s review that they most rue. Many consider that it has enhanced the credence and stature of paid maternity leave beyond what the union movement alone might have gained it, producing expectations within the workforce as to the reasonableness of such entitlements. For the moment, however, employers are waiting to see the federal government’s response to Paid Maternity Leave: A Time to Value.81
NEW ECONOMY AND NEW LABOUR MARKET SECTORS: CONVERGENCE WITH TRADITIONS?
sociologists of various stripes. The fashionable consensus views younger know-ledge workers, Charles Handy’s ‘portfolio people’—empowered by intense demand for their scarce skills and their generation’s individualism—freely floating within and without the formal labour market, attracted variously by interesting work, empowering organisations, operational autonomy, performance pay, profit sharing and employee share ownership schemes, and the opportunities of self-employment. Union membership and traditional labour market regulation would hold few attractions.82
An emerging consensus is that these changes spell the end of ‘traditional’ indus-trial relations with its emphasis on regulatory and representative institutions. Instead, industrial relations patterns developing organically from within emergent, dynamic sectors will progressively condition the rest of the economy. This is thus a new version of the long-standing convergence thesis but one that oper-ates globally within single nation stoper-ates.83The possibility of convergence in the
opposite direction—traditional patterns into these new industries—has remained unthinkable. Similarly, there has been a myopic focus on employees (or non-employee workers) and unionism and a conventional neglect of employers and their associations.
Like similar intellectual fashions, this one lacks historical perspective and ignores business cycles and the vicissitudes of the employment experience over a longer term.84What would happen when product and labour markets in these
sectors deteriorated, when employee share schemes and profit sharing became a hollow promise, when employment mobility fell under the control of straight-ened employers rather than empowered employees? Were there circumstances in which employers would embrace more mainstream structures and processes? We now have some greater sense of the answers.
The information technology sector overlaps with the telecommunications sector, which, in turn, relies heavily on call centres and labour hire. Their industrial relations patterns are similarly interlinked. Unions are strategically targeting these new sectors, combining an organising model with attempts to extend regulation under the award system, a path that often takes years in the face of employer opposition. Employers express opposition by increasingly combining through employer associations and, in particular, AI Group. AI Group coordinates and leads their resistance to union and tribunal regulatory expan-sion but, where unions succeed, becomes a party to the new awards. In these cases, union activism has created the shift towards the mainstream but employer responses have institutionalised that shift.
Information technology
Layoffs in information technology (IT) and services were apparent during 2002 together with heavy pay cuts and some victims have discovered unionism and industrial tribunals.85Employer experiences also shifted towards the mainstream.
patterns pushed AI Group to think and act along new organisational and strategic lines and it continues to provide the sector with separate forums and briefings. More recently, trends within IT have moved that sector towards more traditional industrial relations patterns. In February, after a long campaign, professional unions gained an extension to an existing award so as to cover all IT professionals working for about 150 companies, including most of the sector’s largest. After coordinating IT employer opposition to this change, AI Group is a party to the new award.86
Telecommunications
Outside Telstra, most of the telecommunications industry had been award (and union) free before 2002. Telstra itself had tried the anti-union path together with hefty outsourcing to mostly non-union companies. During 2002, after a three-year battle against AI Group advocacy, unions gained enterprise agreements in Telstra subsidiaries and a broad award covering smaller ‘telcos’. Again, AI Group has become the party to this award as it did in June with an award for IT professionals in the larger telcos (behind Telstra and Optus), a number of whom joined AI Group during the year.87
Call centres
The nearly 4000 call centres in Australia represent another area of rapid employ-ment growth. Again, much of this was outside the award system and largely non-unionised, apart from employees in public sector or ex-public sector organis-ations. Even there, employers have prominently tried to de-unionise by shifting to non-union agreements and AWAs. However, during 2002 it became clear that this is another area converging towards more traditional regulatory patterns. Very diverse images of call centre work prevail. At one end, it appears as horrific, post-industrial assembly lines subject to arbitrary work intensification and management’s Orwellian electronic monitoring and control. At the other, it is knowledge-based, emotional labour that provides a useful career development platform for young graduates. This diversity partially reflects differences in type, sector and management practices used as well as observer perspectives. Tellingly though, the sector has enormously high and expensive labour turnover rates and absenteeism indicative of high stress, boredom and burnout.88
Labour hire companies
Employment in labour hire firms has grown strongly and in a wide variety of industries, many of which, like manufacturing, construction and telecommuni-cations, are or were strongly unionised. Others, like information technology, have been largely un-unionised. Labour hire companies have been members of various employer associations, most notably AI Group and ACCI state affiliates. Because it challenges the workplace representativeness and cohesion of unionism, labour hire has increasingly attracted union organising and regu-latory initiatives. Opposing these initiatives before the Commission on behalf of hundreds of labour hire companies has been a major area of AI Group activity. During 2002, AI Group contested union attempts to establish industry awards for manufacturing labour hire, for telecommunications labour hire and for labour hire within the New South Wales system.90 Here again, a pattern is clear.
Traditional industrial regulation and union presence are spreading across labour hire sectors previously immune from them. In turn, this encourages closer, more formal employer combination and their representation by AI Group, elevating its industrial role within these sectors and consolidating its growing profile within a formally decentralised system.
ACCI BLUEPRINT
Employer association frustration with the ‘unfinished business’ of ‘workplace reform’ became clear in November, when ACCI, in its 10th anniversary year, launched a blueprint for an eight-year program to overhaul Australia’s industrial laws. Although projecting a confident vision of ACCI’s ability to set the policy agenda, the blueprint—Modern Workplace: Modern Future—also revealed deep ACCI frustration with the 1996 Act’s failure to deliver the completely unfettered management prerogative many had expected. Promoting the blueprint, ACCI’s Hendy lamented that, ‘We’ve stopped absolutely dead—the back wheels have fallen off the car’.91 However, the vision articulated in the blueprint is
not of fixing the framework, but rather, completely eradicating key parts of it—including employer-shackling regulation and most employee protections— while massively intensifying constraints on union activity. According to ACCI, the blueprint is an attempt to develop long-term objectives for the industrial relations system, and strategies to make those a reality. Yet, the long-term strategic view is pre-ordained: it necessarily involves further regulatory change along the same lines that the 1996 Act entrenched. ACCI’s mission is to ‘complete the workplace reform initiatives already undertaken’.92
Act. Of particular concern were decisions that ACCI feared had broadened unions’ right to strike, like Electrolux and Emwest (see above).93 Third, ACCI was
concerned with apparently emerging hostility to the enterprise bargaining system in pockets of industry. Here, the Campaign 2003 pattern bargaining agenda for manufacturing was the most prominent example. Fourth, ACCI viewed with dismay what it saw as the union movement’s increasing resort to the arbitral system and award structures, with prominent ACTU test cases the prime examples. Finally, but perhaps most disturbing, was the regulatory shift in the states, where Labor governments were legislatively recasting frameworks and processes in the opposite direction to those of the Club. This strengthened unions and arbitral tribunals. Thus, not only had the 1996 Act failed to deliver com-pletely to employers the specific sort of decentralised industrial system that they sought, but the substantial gains made now appeared under threat.94
ACCI readily admits that changes to the federal framework since the (Labor governments of the) early 1990s have delivered positive outcomes in terms of inflation, productivity, real wages, interest rates, disputes and strikes, unemploy-ment and the number of people in jobs.95Its major fear is of a public policy retreat
from decentralisation. ACCI believes that if this happens it will be because employers have failed to project a coherent, consistent, strategic alternative, rather than because of any widespread dissatisfaction with the federal framework.96In
response, ACCI has sought, by advancing the most unitarist agenda it can through the blueprint, both to stem the retreat and to influence where the fulcrum lies in any such retreat. There are similarities here with the way the BCA, in the mid 1980s, sought to drive debate by promulgating its radically neo-liberal agenda. At that time, much of it seemed laughable to scholars and professionals in the field (including other employer associations) but, over time, it developed an aura of ‘common sense’. The blueprint is to form the basis of a new national political strategy for employers which ACCI hopes will also gain community endorsement.97 Thus, the overarching policy objectives stated in it include
convincing all political parties and the community in general of the necessity for ‘further labour market reform’, removing ‘misconceptions and concerns’ about the effects of this ‘reform’, and securing coordination of legislative measures at state and federal level.98
Within the blueprint are specific, practical suggestions for how to achieve this vision. For example, ACCI suggests that the federal government reduce: the number of legislated standards (creating ‘a more focused safety net’), the scope of awards, and the reach of unfair dismissal regulations. At the same time, ACCI wants the federal government to: enable a wider array of civil courts to conduct proceedings for remedies against industrial parties; establish a small claims jurisdiction; and shift more authority over agreement-ratification from the Commission to the notoriously anti-union Office of the Employment Advocate.99
In a move displaying little self-reflection, ACCI also recommends new approaches to minimum wage fixation, based on an analysis of the history and rationale of Australian wage fixation, which—presumably because they are best-fitted for the job—industry representatives should prepare and then present to unions and government.100 Overall, the blueprint includes all of ACCI’s traditional
proposals, with the addition of specific recommendations to legislatively undo any gains that unions have made under the 1996 Act, whether through bargaining, tribunals or courts.
EDUCATION AND TRAINING
Employer associations recognise the seriousness of existing and impending skills shortages. One response has been to urge an aggressively expanded immigration policy for skilled labour. Vocational education and training (VET) has also become a higher priority. According to employer associations, severe shortages of traditional technical skills are the most pressing issue. Associations also see a need to broaden skill formation to newer sectors of rising employment and to raise technical skill levels for more sophisticated production. Further, employers and their associations are increasingly calling for training in generic, particularly generic ‘soft’ skills such as communication, problem-solving, teamwork and lifelong learning that are increasingly necessary for organisational effectiveness, for example, in manufacturing firms increasing the service component of their activities. This has created a growing emphasis on education as a foundation for training or skills formation.101
The BCA made education and training a central policy issue for the 2001 federal election and has continued to stress this as its main contribution to labour market issues. Since its prominence in the 1980s, AI Group continued to be active in the area—promoting research and policy development, as well as in operational terms—if with somewhat less effect than in the 1980s. However, reflecting rising member concerns across Australia, it greatly boosted funding and staffing of these activities over 2001 and 2002. VECCI, in responding to its Pre-election Survey of members, made VET a central Victorian election policy issue. The more than 400 companies responding to ABL’ 2002 Survey (Business Priorities 2003) placed access to appropriately skilled labour their highest priority.102
developing and advancing policy advice to government and to industry training authorities and there is a great deal of cooperation among associations on some issues, although some operate at different levels of the debate.103
All associations, unsurprisingly, prioritise the ‘industry voice’ in policy making and ‘industry needs’ in program design and delivery. Differences arise as to whether ‘industry’ here means the voice of associations or single employers, and whether these needs are those of single enterprises, industry sectors or industry as a whole. Within the BCA, for example, there is a diversity of views that partly reflect sector and size.104The relationship between associations and
members (and non-members) is fundamental here. During the Accord, some associations were channels for both voice and needs, connecting VET to other policy areas such as industrial relations and industry policy. Within a medium to longer term perspective, this encouraged a focus on simplifying, clarifying, systematising, and linking for the greater good of whole sectors of industry and as well as employees. Since the early 1990s, the mantra of ‘user choice’ has overwhelmed that perspective and has raised representational issues for associations.105In particular, the reluctance of ACCI and the federal government
to support sectoral solutions reflects a wariness towards anything that might engender industry-level bargaining and union influence.
ACCI, which tends most to ideology and (Liberal) party politics in VET as in other questions, religiously holds that all wisdom comes from individual employers’ separate choices. In the face of contrary evidence, it thus abdicates constructive policy-making. The invisible hand, an aggregated expression of the interplay of narrow business interests, is to get to play with some one billion (taxpayer-provided) dollars per year. This rent-seeking approach provides no answers (and avoids the main questions) regarding the maintenance and develop-ment of intellectual infrastructure. There is no accountability, strategic orien-tation or regard for benefits to the public and employees that should be central to such a massive disbursement of public funds.106
Other associations (AI Group, BCA, VECCI) admit that employers’ opinions might overlook broader challenges to properly sustaining education and skill development. For them, the question is partially one of leadership, of associations taking a longer and broader view for a sustainable future. Smaller employers, in particular, often concentrate on their immediate interests with some willing to ‘free ride’ and others reluctant to lose their training investment through poaching by labour market competitors. Even larger companies are often reluctant to invest in VET where, as in retail, profit margins are narrow. This has encouraged some associations to adopt an educative role towards employers as well as public authorities, educational and training bodies. The BCA, AI Group and VECCI all stress the ‘high road’ of advanced skills, competition through innovation and quality jobs.107
declining. Federal government policy has cloaked this by combining traineeships and apprenticeships under the general title of New Apprenticeships.
As Phillip Toner argues, this obscures crucial differences. First, there are decisively different lengths of training: apprenticeships last three to four years, traineeships often only one year. Second, apprenticeships typically include some off-the-job education that broadens and deepens learning and skill sets beyond an employer’s immediate interests. Third, apprenticeships stress career-oriented skill formation while traineeships are there to help those marginal to the labour market get a job. Fourth, as a result, completion rates for trainees are far lower than those among apprentices. Finally, traineeships lead to much lower labour market segments and opportunities than apprenticeships. Further aggravating the government’s statistical ruse is its funding policy—providing the same subsidy level for employers of trainees as of apprentices—that distorts the market by rewarding employers with lower commitment to training at the expense of those with a high commitment. Such a strategic misuse of resources can only exacerbate shortages of traditional skills and weaken industry’s ability to promote more sophisticated technical skills. It creates the danger that employers will adapt their production and product market strategies accordingly, leading to a ‘dumbing-down’ of Australian industry’s product mix.108
On the supply side, the decline in traditional apprenticeships apparently has to do with changing preferences among young people. This is likely to worsen if these same associations are successful in depressing pay rates and conditions for skilled groups through banning pattern bargaining and crushing building industry unionism. More positively, associations like VECCI, AI Group, ABL and the MBA have worked hard to promote traditional apprenticeships in schools and the broader public while the BCA has focused policy attention on fostering school retention rates through VET pathways.109
On the demand side, ‘micro-economic reform’ has privatised, corporatised and generally reduced large public sector instrumentalities that for many decades shouldered much of Australia’s apprenticeship training. A similar picture is true for large private companies, like BHP. As well, the rapid growth of labour hire employment and subcontracting has undermined traditional training patterns by making skill formation and development a responsibility of individual employees, not employers.110
There are also industrial relations implications relating to the impact of increasing qualifications on enterprise agreements, job classifications and pay, particularly as employer associations attempt to re-orient the VET agenda away from youth entry levels to more fully include employee retraining. This interaction of training and industrial relations means that association VET managers are often active in negotiating with unions. Senior ACCI and ACTU industrial relations officials have also played an important role by negotiating a national training award covering those still at school. A training agenda can also spread from collective bargaining and some unionised firms have included training programs in their enterprise agreements as part of ‘high commitment’ strategies.112
Associations are able to use their infrastructure and expertise to boost what they can practically provide to members regarding VET. Adopting a strategic if expensive approach as part of its members’ package of services, AI Group has helped chief executives of medium and smaller members to formulate skills policies as part of personnel planning. Expertise in explaining VET’s industrial relations implications allows it (and other associations) to differentiate itself from private training consultants. Many associations are involved directly as owners of registered training organisations (RTOs) that offer members special rates on training packages. In lieu of traditional apprenticeships, associations also own accredited group training companies (GTCs) that case-manage New Apprenticeships by coordinating and rotating their placement among local ‘host employers’ according to those employers’ needs. They are thus similar to labour hire agencies for New Apprentices. Associations are working hard to promote this model of training, particularly among smaller employers otherwise loath to accept the responsibility of apprenticeships. However, as association RTOs tender for both private and publicly funded work (including to their own associations’ GTCs), when associations participate in VET policy-making, they not only represent their members’ varied interests but they often have a direct pecuniary stake in the design of funding models.113
For their and the federal government’s part, the BCA and ACCI undertook a review (Tarrant Review) seeking to uncover employer requirements regarding generic ‘employability skills’ among employees, irrespective of level. Similar responses came from employers of all sizes and sectors allowing the reviewers to develop an Employability Skills Framework which they wish to see inform the design of VET and formal education more broadly. The findings, embodied in the Framework, largely followed the 1992 Mayer Report’s national key competencies but provide greater specification of their elements and add a couple of further areas. These mainly soft skills—such as communication, teamwork, problem-solving, self-management, and learning—are unexception-able, broadly socially and individually useful and (despite ACCI’s assumptions) already widely entrenched to varying degrees within curricula from pre-school to university.114
and minds to a greater degree. Some of these attributes that the Tarrant Review identified are elements that employers often seek during selection processes: ‘honesty’; ‘enthusiasm’; ‘sense of humour’; ‘adaptability’.115 A more worrying
requirement that the review uncritically accepted as an important attribute for the Framework was ‘loyalty’. Well might employers and their associations require employees’ loyalty to their employers—in the abstract and in the absence of reciprocity—at a time when employers have sworn off providing employment security and career development opportunities and when inequality of remuner-ation within organisremuner-ations is becoming ever starker. To desire automatic employee loyalty in the face of extortionate executive remuneration linked to periodic mass sackings is to perversely display that sense of humour which employers also require. The (PAYE taxpayer-funded) Review then proposes, and ACCI more aggressively trumpets, that the (taxpayer-funded) education sector should be responsible for incorporating such attributes ‘in a systematic way, into teaching, assessing and reporting’.116This means totalitarian-style social
engin-eering and brainwashing through schools in favour of the wealthiest and most powerful groups in society. It differentiates ACCI’s proud commitment to free markets from a commitment to free thought or expression. Market relationships are essentially impersonal. If employers wish for psychological commitment and loyalty, they will have to earn it.
CONCLUSION
Overall then, during 2002 there was substantial continuity regarding employer matters. If the decline in adversarialism coming from large employers continues, then that continuity will be part of a longer tradition. Employers and their associ-ations were involved in warding off the early stages of a multi-pronged union campaign that links hours of work, maternity leave and other work-family issues. This is going to keep associations busy and prominent for some time. So too is the union campaign to toughen definitions of who is or is not an employee.
The effects of the Cole Report and the activities of the building industry taskforce are less predictable. Clearly, the federal government intends to use them as a governmental shield behind which to mobilise employer activism, particularly among subcontractors. The next couple of years may be particularly unsettled ones for all parties in that industry. Employers and their associations need to keep in mind that, long after Cole, his leading counsel and Tony Abbott have departed the scene, that they, together with employees and their unions will still be engaged in the difficult questions about how to regulate work in this most complex, insecure and occupationally dangerous industry.
secret dreams they might entertain of returning the workforce to the rule of master and servant acts. A first point is that regulatory rollback, apparent in state jurisdictions, will inevitably come federally and this is all the more likely if associations continue to politicise their policy efforts. Their approach also politicises questions of process and forces ingenuity, energies and resources into lobbying and litigation rather than into developing better bargaining relation-ships. Employer representatives speak much of commitment to bargaining but they really mean bargaining on employers’ chosen terms and according to rules and processes that suit employers’ convenience. This is not bargaining; it is dictation. While this may be what employers really want (and in their place, it would be most attractive), this is a democracy and employees rightly expect that democracy to also enter the workplace.
More broadly, employer association insistence that legislation and taxpayer funds underpin their right to dictate is part of a wider rentier mentality that they pursue (again understandably) on the part of their members. Tariff protection was once a principal objective, but employers shared its benefits with employees. In a world of competitive product markets they now want (largely PAYE) taxpayers to subsidise keeping unions weak and ineffective to enable employers to keep wages low and working conditions poor, to weaken employment security and to provide them with a workforce trained (and socialised) according to indi-vidual employer needs. In essence then, they want the state to manage employers’ labour problems rather than to make constructive employment relations and people management an area of comparative advantage among firms. This panders to the worst of employers but associations have been largely silent on these points. It is a far cry from how early employer associations formed and how they sought the moral high ground by trying to protect ‘fair’ employers from the rapacious competition of the ‘sweaters’.
REFERENCES
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3. Thornthwaite L and Sheldon P, Employer Matters in 1999, p. 84 for earlier discussion of the Club.
4. ACCI Media Release, 24 March 2002; Workforce, Issue 1376, 8 November 2002, p. 2; Grozier D (2002) Industrial Relations–The State of Play and Emerging Issues in NSW. ACIRRT Conference, 28 November 2002, p. 3.
5. Way N (2002) Another dismissal issue haunts Labor. BRW, January 24–30, 2002, p. 37;
Workforce, Issue 1348, 26 April 2002, p. 2. For implicit AI Group admission as to the failure of the maximalist approach, Industry Today(AI Group), February 2002, p. 5.
6. In November 2002, AI Group won leave to appeal the decision to the Federal Court.Workforce, Issue 1376, 8 November 2002, p. 3.
7. Skotnicki T (2002) The fading voice of business. BRW, September 12–18 2002, pp. 64–6. 8. Macfarlane D (2002) Toughen anti-strike laws, bosses urge. Australian, 8 July 2002, p. 5; 9. See comments of successful lawyer for unions, Josh Bornstein, Workforce, Issue 1358, 5 July
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10.Workforce, Issue 1383, 24 January 2003, p. 1.
