EMPLOYERS WHO are seeking to retain flexible workplace arrangements and protection against industrial action would be well-advised to review their existing agreements and conclude any agreement negotiations prior to the upcoming federal election, according to the Australian Mines and Metals Association (AMMA).
Mining sector employers are concerned about the impact of the Australian Labor Party’s industrial relations policy, and as such, may be concerned about introducing Australian Workplace Agreements (AWAs) prior to the election, said Christopher Platt, general manager of workplace policy for the Australian Mines and Metals Association (AMMA).
“Employers are extremely nervous, but they’re not nervous about making any changes; they’re nervous about retaining the status quo,” he said.
The main areas of concern with the ALP’s policy are the removal of AWAs and greenfield employer agreements, an increased focus on inflexible union dominated award system, the capacity for agreements to be imposed on employers under the guise of good faith bargaining, and the removal of the Australian Building Construction Commission in 2010.
There are also policy vacuums in the areas of union rights of entry, retention of secondary boycotts legislation, transitional arrangements for AWAs and access to the commission and courts in respect to unlawful industrial action, Platt said.
“Most worry of all is the capacity for an incoming ALP government to immediately implement the majority of the policy initiatives by making regulations and/or administrative decisions without the scrutiny of the Parliament,”he said.
The Workplace Relations Act is underpinned by numerous regulatory and administrative powers, and as such, a Labor government would not necessarily have to wait for Senate approval in order to effect changes. As such, an ALP government could change which Acts are overwritten by WorkChoices through regulation, he said.
For example, with the close relationship between a Labor federal government and the Labor state governments, employers could see expanded rights of entry in every state, and WorkChoices could allow expanded right of entries to take place under section 16(2).
Jacquie Seemann, a partner with Cutler Hughes & Harris, said that even if Labor does win the election, it will not be clear who controls the Senate until July. However, she also noted that Labor has not ruled out the possibility of making changes through regulation.
“So there are a number of different possibilities and a lot of uncertainty. That uncertainty rattles people. A lot of people are doing a lot of frantic thinking, but they’re not taking any steps at this stage,”she said.
“There are a large number of employers who come to us with the expectation that come November, everything will be clear. I think that that is overly optimistic.”
Even if Labor does win the election, AWAs that are already in place will most likely survive at least until July, and probably longer. “So for some employers, if they can get significant financial benefit out of making an AWA, it’s definitely worth doing that even now,”Seemann said.
“However, you’ve got to be certain that you will get benefits and still pass the fairness test. That usually expresses itself through greater flexibility, particularly when you’re dealing with awards that have quite rigid work hour provisions or overtime provisions.”
Employers in the resource sector have been early adopters of industrial relations reforms, according to Platt, and employees in Western Australia have been working on statutory individual contracts for well over a decade initially under State Workplace Agreements and now under Australian Workplace Agreements.
One in two Australian mining employees work on an AWA, in Western Australia this figure rises to eight in ten employees. However, if Labor wins the election, employees on AWAs will not be able to renew their agreements.
“We’re still uncertain as to what the transitional arrangements are. So within one year, you’re going to have a two-speed workforce. You’re going to have 75 per cent of your people on AWAs and the other 25 per cent of the people are going to be on common law contracts – common law contracts that can’t protect you from industrial action, that can’t override inflexible union awards, and that don’t prevent access by uninvited third-parties,” he said.
As such, Platt said line mangers who have not had experience in an adversarial union focused industrial relations system should get up-to-speed on how to respond to union demands for access and involvement in the workplace.
In any case, employers need to ensure that employees understand their role in the business and align the employees’ and employers’ goals. “That’s something that takes a long time to develop. And to be honest, if you’re only starting doing it now you’ve probably missed the boat,” Platt said.