Howard’s anti-union agenda: Prohibited Content

The following 2006 comment focuses on one of the new details of WorkChoices, that of ‘prohibited content’. Content for enterprise agreements that are legally prohibited are ‘union-friendly claims’.

They were formerly lawful content in collective bargaining agreements. This assumes some knowledge of WorkChoices and how it is unfair for workers and their unions and gives more power to employers. References are available.

This example of what union claims are prohibited shows the Howard government’s anti-union ideology and strategy to suppress effective unionism. These are in new Work Choices Regulations.

As a last resort, a lawful strike ‘protected action’ puts pressure on the employer for an enterprise agreement. This comment assumes knowledge of WorkChoice’s new compulsory ballot procedures for a lawful strike, the Protected Action Ballot, PAB. Unions apply for a ballot for ‘protected industrial action’.

WorkChoices allows employer legal challenge to the PAB requirements

One of the many requirements is in s 453. In a union Protected Action Ballot, a declaration has to be made that the claims do not involve any prohibited content. The penalty is $33,000.

In section 461 a PAB is not to be granted unless certain conditions are met. The Australian Industrial Relations Commission AIRC must be satisfied:

(a) during the bargaining period, the applicant genuinely tried to reach agreement with the employer of the relevant employees; and
(b) the applicant is genuinely trying to reach agreement with the employer;

What is Prohibited Content?
Section 356 refers to regulations by the Minister in Division 7.1.

‘Subdivision B Various matters that are prohibited content 8.5 (1) A term of a workplace agreement is prohibited content to the extent that it deals with the following:

(a) deductions from wages of an employee of trade union membership subscriptions or dues;

(b) the provision of payroll deduction facilities for the subscriptions or dues;

(c) employees receiving leave to attend training (however described) provided by a … union;

(d) employees bound by the agreement receiving paid leave to attend meetings (however described) conducted by or made up of trade union members;

(e) the renegotiation of a workplace agreement;

(f) the rights of an organisation of employers or employees to participate in, or represent an employer or employee bound by the agreement in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice;

(g) the rights of an official of an organisation of employers or employees to enter the premises of the employer bound by the agreement;

(h) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;

(i) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;

(j) the forgoing of annual leave credited to an employee bound by the agreement;

(k) the provision of information about employees bound by the agreement to a trade union, or a member acting in a representative capacity, officer, or employee of a trade union, unless provision of that information is required or authorised by law.

(l) Terms that encourage …union membership (2) A term of a workplace agreement is prohibited content to the extent that it: (a) directly or indirectly requires a person bound by the agreement:

(i) to encourage another person bound by the agreement to become, or remain, a member of an industrial association; …or (b) requires an employer… to indicate support,… for persons being union members.

Terms allowing for industrial action (3) A term of a … agreement is prohibited content to the extent that it permits a person …to engage in or organise industrial action. (4) A term …is prohibited content to the extent that it prohibits or restricts disclosure of details of the workplace agreement….

Terms providing for remedies for unfair dismissal (5) A term… is prohibited content to the extent that it confers a right or remedy in relation to the termination of employment of an employee… for a reason that is harsh, unjust or unreasonable. (6) To avoid doubt, a term is not prohibited content …to the extent that it provides a process for managing an employee’s performance or conduct.

Term concerning AWA individual contract (8) A term …is prohibited content to the extent that it directly or indirectly restricts the ability of a person bound by the agreement to offer, negotiate or enter into an AWA. …(9) (1) (i): labour hire agency means an entity or a person who conducts a business that includes the employment or engagement of workers for the purpose of supplying those workers to another entity or person under a contract with that other entity or person. Labour hire worker is a person: (a) who: (i) is employed by a labour hire agency; (ii) is engaged by a labour hire agency as an independent contractor; (b) who performs work for another person under a contract between that entity… and the labour hire agency.

8.6 Discriminatory terms (1) A term … is prohibited content to the extent that it discriminates against an employee, who is bound by the agreement, because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Subdivision C Matters that do not pertain to the employment relationship are prohibited content.

8.7 (1) (3) … a matter pertains to the employment relationship: (a) in the case of a collective agreement—if it pertains to the relationship between the employer bound by the agreement and all persons who, at any time when the agreement is in operation, are employed by the employer and who are bound by the agreement;

8.8 Prohibited content Term preventing the making of an AWA

(1) A term of a … individual or collective State agreement …is prohibited content… to the extent that it prevents the employer bound by the agreement from making an AWA individual contract.

Term restricting training (2) A term of an…agreement …is prohibited content…if it restricts the range or duration of training arrangements….

Subdivision B …8.9 Employer must not lodge workplace agreement containing prohibited content. Advice is given by the Employment Advocate to an employer that a workplace agreement …does not contain prohibited content.’

Under the former Workplace Relations Act 1996, the right to strike was limited in certain ways.

2006 WorkChoices further legally restricts the taking of lawful strike action. One restriction is if the claims are seen to contain these above Prohibited Content.

In policy terms, such restrictions are extreme, as they forbid employers and unions from freely agreeing on matters of mutual concern.

Employers had previously agreed all of these terms of agreement, the content of what is now called prohibited content. So industrial parties were forced to take them out of thousands of agreements. Many of the union-friendly terms had been arbitrated by the independent AIRC. They are now removed from agreements and awards.

The government did not trust employers to have any normal relationship with unions, recognising unions and making legitimate agreements, as in the details above. That is, freedom of contract does not apply.

This Howard government intervention is an unprecedented political intrusion into the affairs of workplaces. By law the government’s ideological anti-union agenda is forced upon those who may want for good reason to recognise unions and accept legitimate collective bargaining.

Union-friendly clauses assist productivity. This WorkChoices restriction is close to the worst in the world.

The next point is that lawful strike action for enterprise bargaining is now outlawed if there is any suggestion the union is seeking those Prohibited Content claims.

With WorkChoices, many employers and unions negotiated that if they had to take out these terms of the system’s agreement making, then to maintain their practice and policy, they would agree these matters in a side common law agreement or deed, both reasonable and practical. What happens is that if these side agreements with PC are opposed by an employer, such a PC claim taken at the same time as a union was seeking an enterprise bargaining agreement and making an application for a protected action ballot, then the employer’s legal firm challenges, and at times succeeds, to defeat even the holding of the ballot on the above grounds that the union was not genuinely negotiating.

The AIRC has ruled that there has to be evidence of the union withdrawing Prohibited Content terms in the side agreement. Employers who formerly agreed (or where there was arbitration) for PC terms are now able to refuse to agree to any PC clauses in side agreements. This severely disadvantages any unions’ recognition and protection by agreement.

During a case, the employer’s lawyer cross-examines the union organiser on whether they are seeking union encouraging clauses and if so the Protected Action Ballot is refused.

The extent of the PC regulations allows employer lawyers’ to take every technical point.

Further, the Minister’s ‘political’ Employment Advocate goes out of its way to have narrow interpretations of PC and constantly delays and backs the employers’ position. This is but one aspect Howard’s politically correct anti-union system.

Employer legal firms also challenge the meaning of ‘pertaining to the employment relationship’. In the High Court case Electrolux 2004 claims for Bargaining Agent Fees were declared unlawful. Now further under WorkChoices, employers challenge ‘protected action’ by taking technical and narrow interpretations. For example, any ordinary employee would say the Bargaining Agent Fees relate to the employment relationship, but not seen as such by the courts.

The good news for workers bargaining is despite the severe restrictions in WorkChoices, unions have conducted successful ballots with strong majority support. Then putting protected industrial action pressure in enterprise bargaining can win 4% or more wage increases and improved conditions.

This comment is to expose these unjustified restrictions on the freedom of unions to determine their own claims and the right to strike. The ACTU fair go campaign includes a right for a lawful strike, without penalties.

This was written in 2006. Prohibited content could have been repealed by the Minister Gillard, but she has not done so yet.

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