Legislating Workers' Rights
Ron McCallum* argues that a Beazley Government should legislate minimum conditions of employment for workers and encourage the establishment of European-style elected works councils.
There is a better than even chance that towards the close of 2001, a
federal Labor Government led by Kim Beazley may be elected to hold office
for the next three years. If this occurs, it will mark the only chance in
this decade to unshackle federal labour law from the neo liberal fetters
that now bind it. The industrial relations policy of the ALP has not been
launched, but it does appear that the major thrusts of the policy are that
Australian Workplace Agreements (AWAs) are to be abolished; awards are to
be upsized to cover most terms and conditions of employment; and provisions
making "parenthood" statements about the necessity to bargain
in good faith are to be enacted. In brief, labour law is to return to the
position it occupied in mid-1996, prior to the passage of Peter Reith's
Workplace Relations Act. 
Any policy which highlights the abolition of AWAs and the upsizing of awards cannot help being characterised by much of mainstream Australia as backward looking. There are far more important areas of labour law that require reform, and these are the matters that the trade union movement should be examining. A long lasting revitalisation of labour law can occur if a Beazley Government adopts a rights-based strategy when reforming labour law. Under a rights-based approach, a Beazley Government should be primarily concerned to enact positive employee rights and obligations into statute law. The Commonwealth Parliament should legislate minimum terms and conditions of employment; it should provide a mechanism to require enterprises to recognise and bargain with trade unions; and it should enact a law encouraging the establishment of European/style elected works councils in the undertakings of employers with 100 or more workers.
Legislating Work
Awards have found it difficult to keep pace with changes in work which have been brought about by the computer revolution. The recent collapses of H.I.H. and One-Tel have shown the inherent weaknesses in a safety net based upon awards. In both instances, the Australian Industrial Relations Commission had to be speedily requested to grant employees redundancy benefits. The Workplace Relations Act already provides minimum entitlements to notice on termination for all Australian workers. The Workplace Relations Act also contains parental leave provisions that are tucked away in schedule 14. However, these provisions are only aspirational in nature because they are largely unenforceable.
Minimum Standards
A Beazley Government could at the very least, legislate the following minimum terms and conditions of employment for all workers who are governed by federal labour law. As well as minimum periods of notice on termination, the following minimum terms and conditions of employment could include the TCR redundancy payments entitlements; hours of work; standards for fulltime, part-time and casual employment; major public holidays; annual leave; and family leave including enforceable parental, cultural and bereavement leave. It would be open for the Australian Industrial Relations Commission to increase the level of these minimum entitlements in specific areas of award regulation. Once these entitlements were set into "LAW" it would be no longer possible through the use of the so-called "no disadvantage test" to have these minima cashed-out and bargained away in union and non-union collective bargaining. Too much bargaining these days involves employees exchanging their entitlements for cash payments. A further advantage of placing these terms and conditions of employment in an Act of Parliament is that at long last, our federal labour law statute would clearly spell out the rights of working women and men. The Queensland Industrial Relations Act 1999 adopts this approach and it would be a useful model for Mr Beazley to consider.
Requirements at the Enterprise Level
There is no mechanism in the Workplace Relations Act requiring employers to engage in collective bargaining with trade unions. Even where a workforce of an enterprise is 100% unionised, the employer cannot be compelled to bargain with that trade union. When unions are registered with industrial coverage under the Workplace Relations Act, they are able to participate in award-making by the Industrial Relations Commission. However, there is no mechanism in the Workplace Relations Act that requires an employing enterprise to recognise a trade union for the purposes of collective bargaining.
Recognition and Bargaining
In my view, collective bargaining can be furthered under federal labour law, but only if provisions are enacted requiring employing enterprises to recognise trade unions for the purposes of collective bargaining. This is what the Blair Labor Government did in Great Britain in 1999. The Clarke New Zealand Labor Government also enacted a bargaining and recognition mechanism last year. Reasonable minds will differ on the necessary pre-conditions for recognition, but in my view an enterprise should be mandated to recognise and bargain with a trade union where either 20 of the employees are union members, or 40% of the workers are unionised, whichever be the lesser number. Only when enterprises are required to bargain with recognised trade unions will bargaining in good faith laws be truly operative. When laws are in place requiring an enterprise to bargain with a duly recognised trade union, then bargaining in good faith laws that are supervised by the Australian Industrial Relations Commission will be able to enforce fair bargaining between the trade union and the enterprise.
Australian citizens have the right to participate in the governance of our nation by voting in Federal, State and municipal elections. A human right of Australian citizens at work should be the right to participate in the governance of their employing undertakings through bargaining and/or consultation. In a majority of Australia's places of work, unionised bargaining no longer occurs.
Works Councils for Australia
In order to enable employees to collectively participate in workplace governance, a Beazley Government should enact a law to encourage the establishment of European/style elected works councils in undertakings employing 100 or more workers. These bodies could consult with employers on a range of issues including rostering arrangements, the introduction of technological change and workplace amenities. Of course it would be necessary to ensure that the elected works council members truly represented the employees of the undertaking. For example, a workforce which was 60% female should not be represented by an all male elected works council. Works councils would require support from the Commonwealth Government which should establish programs to train employee and employer works council members to ensure that they understand their rights and responsibilities.
As works councils are a new and untried mechanism in Australia, it is my view that an initial law should confine itself only to encouraging the establishment of works councils. This type of encouragement could be given through granting participating undertakings taxation concessions etc. The use of taxation concessions was the way in which the Australian Democrats Industrial Democracy Bill 1981 sought to encourage industrial democracy in Australia. Although this bill passed the Senate, it was not debated in the House of Representatives and lapsed when the Parliament was dissolved in 1983.
If after two or three years voluntary works councils prove to be successful, then the Commonwealth Parliament should consider mandating the establishment of elected works councils in undertakings employing 100 or more workers. To sum up, my argument is that a Beazley Government should not be shackled by the labour laws of the past. Instead, it should look towards a future revitalisation of collective labour law by adopting a rights-based strategy.
* Ron McCallum is the Blake Dawson Waldron Professor in Industrial Law, University of Sydney.