VTHC criticises FWB

VTHC Victorian Trades Hall Council Senate submission criticises the Fair Work bill and calls for:
Amendments to supplement the penalty provisions of the Act which are enforced by the Court with a specific power for the Commission to make orders with respect to breaches of freedom of association; Include a fast track mechanism for hearing allegations of discrimination or victimisation on the grounds of union activities, and the provision for interim orders reinstating the status quo pending determination of the allegation;

Recognise that freedom of association comprises the promotion of collective bargaining between workers and their employers and the right to strike. Conduct by an employer that is designed to, or has the effect of deterring workers from engaging in collective bargaining, taking part in protected industrial action, or relying on collective agreements should be prohibited conduct;

and Prohibit employers from offering inducements that are designed to deter, or that have the effect of, deterring workers from: joining a union; exercising the statutory representation rights that accompany union membership, participating in collective bargaining, taking part in protected industrial action or relying on a collective agreement; or taking action by an employee in support of professional standards.

The FWB does not contain legislative protection for union delegates and cites ACTU policy.

The proper functioning of FOA is via Right of Entry. Employers must facilitate entry, especially where there are ‘remote access’ issues. Right of entry is a proper function of FOA – provisions to inspect all work and records covered by an Award or EB for suspected breaches of Awards, EB’s or the Act requires the ability to discuss such matters with employees and the employer. In turn access to work areas and areas where workers go is very important.

• On the 29 November 2008 the Australian newspaper published an article by Paul Kelly entitled: “IR reforms asking for trouble”. In the article Kelly described the right of entry provisions in the then recently tabled Fair Work Bill 2008 as “extraordinary and unacceptable in a democracy” .

This is an outrageous characterisation of what is proposed. Not only is the proposed new right of entry provision quite restrictive and similar to the WorkChoices regime but falsely and mischievously calling in Australia’s democratic traditions is also dishonest.

The industrial history of Australia has always had the right of unions to enter workplaces. It was only since the latter part of the Howard years was such a right dramatically curtailed. The ILO conventions to which Australia is signatory, has also underscored this right for many decades. Why Mr Kelly misrepresents this history in his article is for him to answer.

But it is important to emphasise the historical facts. The employer associations in particular, when pushing back against the conservative processes of right of entry on offer in the Bill under inspection in this Inquiry, like to try to blur past practice. The Freedom of Association – the right of a worker to join with other workers and freely associate in a union – is recognised as a fundamental human right, deeply rooted in international and Australian law. It is a right that is recognised in almost every Charter of Human Rights, including the UN Declaration of Rights, the European Convention of Human Rights, the US Constitution and the Canadian Charter of Rights and Freedoms. It is also a fundamental principle in various ILO conventions ratified by Australia.

The ILO’s Freedom of Association Committee has stated that:

“The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade union represents. There are no circumstances that justify maintaining measures against collective representation, such as complex right-of-entry provisions. Unions should be given access to potential and current members so they can understand these workers’ aspirations and grievances. Unnecessary restrictions in this area represent a practical repudiation of freedom of association. Right of entry and associated provisions are logically linked to the right of workers to be effectively represented.

Under the Act unions should be given reasonable access to the workplace without the need for technical administrative procedures. Facilities should be made available to enable unions to promptly and effectively carry out their responsibilities.

Access should include the ability to post and distribute union notices. Workers’ representatives should be given prompt access to representatives of the employer, who have the capacity to resolve disputes, so that they can properly carry out their functions. The fact is that right of entry was never really an issue until the Howard government.

Scope of Collective Bargaining/Freedom of Association The ACTU Congress 2006 policy states:

ILO principles and overseas practice recognise the importance of bargaining parties being free to agree to negotiate collective agreements at the workplace, enterprise, multi-employer or industry level, and for employers and unions to pursue common claims and outcomes in single business agreements. The constraints on collective bargaining in Australia would not be tolerated in other democratic societies. greater flexibility in the scope and the level at which bargaining occurs in Australia.

While collective agreement making will predominantly continue to be at the level of a single business, employer, or a group of related businesses bargaining as a single business (commonly described as enterprise bargaining). Congress calls for a greater capacity for the parties to pursue bargaining at different levels. Where a multi-employer agreement is proposed but the claim for such an agreement is contested, the Commission should have the power to determine whether a multi-employer bargaining process should process, and determine who the bargaining parties will be.

The Commission should apply the following criteria when authorising a multi-employer bargaining process:

ILO conventions and principles, and the freedom of the parties to determine the level at which they bargain; The community of interest of the employees; The community of interest of the employers; A collective multi-employer agreement covering a site or project involving multiple employers engaged in the same undertaking (e.g. a construction site) should clearly be available without limitation;

The desirability of promoting collective bargaining, particularly where the employees or the employers lack the capacity to bargain at the single business level, or the size or number of workplaces in a particular industry or industry sector mitigates against collective bargaining at the single business level;

The needs of lower paid workers and the desirability of promoting bargaining and lifting living standards; The history of bargaining; or Any potential, demonstrable and long-term negative impact on the viability of a single business.

‘[Extra Comments – Mandatory flexibility clauses should be null and void if they are shown to reduce rights at work; the Act should ensure the bargaining unit is based on custom and practice for transitional arrangements (eg Awards to collective agreements) to prevent sham arrangements; In bargaining Agreements must provide for workable outcomes regarding disputes and grievances that develop during the life of an agreement; In bargaining – parties to be free to bargain on any matter and have such agreed matters included and enforceable in Agreements. Bargaining claims must not affect protected action; In Bargaining – Multi employer bargaining to include a definition of entity, based on ‘effective control’ and provisions to have access to funding agency to bargain. Multi employer bargaining should not exclude the ability of workers to take protected industrial action; When making agreements the ability to contest or intervene in the certification of the agreement process to ensure ‘genuine agreement’ and ‘appropriate’ tests are important.

Industrial Action Industrial action is integral to bargaining, as it provides the means to balance the economic power of the bargaining parties.

Industrial action in pursuit of an agreement to cover a single business (including the pursuit of common claims and outcomes at more than one single business) should be available without recourse to the Commission.

Where a multi- employer agreement is being pursued, industrial action should also be available.

Industrial action should be available to employees during bargaining, without the need for a secret ballot. It is a matter of good union practice that industrial action is democratically endorsed. Industrial action should not be able to be undermined by use of replacement labour.

Industrial action by employers (lock-outs) should not be automatically available. ILO jurisprudence does not support an automatic right to employer industrial action.

The law should also enable the conduct of meetings to prepare for bargaining, actions top promote the social or economic views of workers, fair provisions re OHS, and allow workers to protest breach of statutory duties.

Industrial action should also be available during an agreement where the employer proposes significant organisational changes, breaches agreements or where workers wish to participate in wider political, social and economic issues that affect them and society at large.

Trade Practices Laws The ACTU Congress 2006 policy states: All provisions of the Trade Practices Act applicable to unions and employees should be repealed. The independent Industrial Relations Commission should deal with industrial action as part of its general powers in relation to the bargaining process.

… While the legislation claims to maintain and extend protection for outworkers – some of the most exploited workers in the country – the reality is that it significantly reduces protection by overriding relevant state laws. The legislations should protect all workers, whether they are employees or self-employed.

[There should be an unfair contract jurisdiction to protect such as independent contractors.]’

There is a section pointing out the deficiencies in unfair dismissal.
Transmission of business concerns.

There is a section on the repression of building and construction industry.
‘The Fair Work Australia Bill cannot hope to meet the purposes for which it was introduced if separate legislation and regulation which is superimposed over the Workplace Relations Act and demonstrably represses freedom of Association principles is allowed to remain in place for building and construction workers.’

http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm No 5.

Fair Work Bill

Fair Work Bill


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