On the issue of fair collective bargaining rights, there is a deliberate breach of the ALP’s election promise by the government not to allow unions freedom to negotiate over the content of collective agreements.
One of the extreme outrages of the WorkChoices regime unique in the OECD world was the ‘prohibited content’ regulation. Without listing them, they deprived unions and employees of the freedom to negotiate over a range of normal (and arbitrated) clauses and penalised employers who chose to agree with their workforce on union rights, such as trade union training leave. The ‘prohibited content’ regulation is to be repealed by the FWB, but major issues remain.
Despite the ‘Forward with Fairness’ promise to ‘remove the Howard Government’s onerous, complex and legalistic restrictions on agreement content’ and that bargaining participants should be ‘free to reach agreement on whatever matters suit them’, subject only to the requirement that the terms be ‘lawful’, the FWB does not give effect to this promise. This is an undeniable breach.
The FWB still restricts the matters on which industrial parties can reach agreement. One WorkChoices prohibition still in the FWB is ‘bargaining agent fees’, an agreement that non-unionists gaining the benefits of collective bargaining pay a fee to the union, supported by many workers as fair (I add and seen as obviously relating to the employment relationship) and available in other countries. It is not up to MPs to determine such matters, but the industrial parties. To prohibit such claims is simply a continuation of frustrating unions.
In an unnecessary complex legality, the FWB makes a distinction between ‘unlawful’ and ‘non-permitted’ terms. ‘Unlawful terms’ are not just unenforceable, but if in an agreement will prevent Fair Work Australia FWA (which is the Orwellian name given to the AIRC) approval. What is ‘unlawful’ is a major concern.
The FWB prohibition on ‘unlawful terms’ especially in relation to unfair dismissal, right of entry and reserving subject matters effectively re-introduces deceptively ‘prohibited content’ matters. This undermines free collective bargaining since making a claim that is honestly thought to be lawful, but which later is held by a judge to be not so, prevents a union from obtaining FWA orders, is most risky for organising protected industrial action, or having the agreement approved and will lead again into time wasting ‘common law side agreements’ that do not give parties certainty that their rights are enforceable.
Despite consent arrangements, enterprise agreements will not be able to provide better conditions than what the FWB provides as a minimum on right of entry, unfair dismissal and to reserve matters. This denies the parties rights to bargain fairly and in good faith on any matter they like and breaches ILO rights to collectively bargain and undermines reasonable industrial relations.
The one advance is that now an agreement can deal with a deduction of wages for any purposes authorised by the employee, such as salary sacrifice and pay roll deductions and can include union training leave (arbitrated in SA 20 years ago!)
The next issue is I cannot see any justification for is the concept of ‘non-permitted’ content in agreements. Parties should be free to negotiate their own agreements. Employers and employees should not be told by MPs that, even if they freely agree on a matter that they regard as important to their relationship, e.g. as argued in point 4 a commitment to address the environmental crisis, they cannot include it in their agreement, despite what they have agreed is in no way illegal.
There is no obligation for FWA to do anything about ‘non-permitted’ content, no penalty for having a ‘non-permitted’ in an agreement, but it will have no effect, and thankfully not affecting the validity of the agreement as a whole.
Agreements can only contain ‘matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement’.
The definition of what are ‘matters pertaining’ will still be uncertain legally for parties and the courts to grapple with when a matter does or does not ‘pertain’ to the employment relationship. If this is not another form of juridification, then I do not know what it is. See Mark Irving’s perceptive arguments ‘The freedom to agree should not be restricted to matters pertaining.’ AIER The debate 2008. www.aierights.com.au
What will inevitably occur again is the ridiculous time consuming farce forced by WorkChoices on [arties to have ‘side common law’ agreements, with all the legal uncertainties. Companies and their employees may want commitments on many issues relevant to that enterprise but designated ‘non-permitted’ matters to be unequivocally binding. Why do we have to go down this 1984 path again!
Most unreasonably, like WorkChoices, the inclusion of ‘non-permitted’ content in a proposed agreement means any industrial action taken is unlawful: but we have a rider, unless those concerned reasonably but mistakenly think the content is permitted. Now that is an improvement, but will surely be legally contested.
New practices will emerge if the union wants to reach agreement that it suspects is ‘non-permitted’, such as an environmental claim (that others may see as outside of the employment relationship) or over what for other employers may be seen as a management prerogative (employment of contractors say), but also wants to have the option of taking industrial action during the negotiations.
The DPM had the nerve to say that this will do away with the legal complexities and the ‘tortured logic’ and ‘doctrines’ of the conciliation and arbitration system. Yet the DPM knows full well the concept that awards and agreements can only be made about ‘matters pertaining to employment’ is just such a ‘doctrine’, dating back to the definition of ‘industrial matters’ in the Conciliation and Arbitration Act 1904 and it is not at all clear.
I argue that ‘matters pertaining’ is an ancient judicial doctrine arising out of master and servant status law dating back centuries ago. Judges assigned legal rights by status, not workplace reality or social justice. The master’s status carried the assigned right of total dominance while the servant was assigned the status of total obedience. Any hint of conflict from the servant was automatically as an issue of status severely punished. Over many years, this status doctrine was imported into capitalism’s ’freedom of contract’ law. Today, this status reasoning is applied by the device of ‘matters pertaining‘, converted to the status of the employer and employee. Unless centuries of fictional legal doctrine are to be still allowed, judges must be relieved of using the status device to declare that white is black.
The DPM is right that there is a ‘substantial jurisprudence’ as to the meaning of ‘matters pertaining’ phrase, and knows that it is ‘a confusing, uncertain and downright inconsistent jurisprudence’ to cite one reference amongst many labour law books and articles, B Creighton and A Stewart, Labour Law, 4th ed, Federation Press Sydney, 2005, pp 97–104.
The DPM is pleased to assert that industrial parties will not be able to make agreements on ‘managerial prerogative’, again a highly contested notion, much litigated with many differing legal positions pronounced. It is extremely difficult for employers and unions in trying to determine what is ‘permissible in an agreement and what is not’.
There should not be any notion of ‘matters pertaining to employment’ or ‘permitted matters’. Or if so, at least in the broadest of terms such as covering the occupational and economic and social interests of the parties, but then to be sure, as I argue ‘environmental’.
Get onto your MP and complain.
Fair Work Bill
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