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Election 2013: What does the future hold for workplace relations?

19 August 2013


Election 2013: What does the future hold for workplace relations?

Alison Spivey, Senior Associate

With the leadership of the major political parties now settled and the 2013 federal election looming, PCS examines the workplace relations policies of the major parties and considers what the Australian workplace relations landscape may look like in the not-too-distant future.

Workplace relations will be an important issue in the campaign platforms of the major parties—the Australian Labor Party (“ALP”) and the Liberal-National Coalition (“Coalition”) for the 2013 federal election campaign.

In this article we consider some of the areas of workplace relations policy that are likely to be the subject of debate between the major parties in the lead up to the election and beyond.

The Policy Framework

At the time of going to print, the ALP is yet to release its formal workplace relations policy. However, recent legislative amendments and public statements by Prime Minister Rudd and other senior government ministers reflect the position likely to be adopted by the ALP in the lead up to the election in a number of significant policy areas.

The Coalition’s policy with respect to workplace relations under a government led by Tony Abbott was released in May 2013 in the form of ‘The Coalition’s Policy to Improve Fair Work Laws’.

The Legislative Framework

The Fair Work legislative framework is unlikely to be subject to wholesale changes under a Labor or Coalition government following the 2013 federal election.

It is more likely that the ALP under a Rudd Government will continue with the recent process of incremental change in response to the prevailing social, political and economic circumstances.

By way of illustration, the second tranche of reforms passed by Parliament in late June 2013 involved amendments to the Fair Work Act 2009 (Cth) (“FW Act”), amongst other things:

  • to provide early intervention where employees may seek assistance from the Fair Work Commission (“FWC”) if they believe that they are being bullied at work;
  • to extend the right to request flexible working arrangements;
  • to require ‘genuine consultation’ with employees regarding changes to work hours and rosters;
  • to permit the use of lunchrooms for union discussions with employees if there is no agreement with the employer with respect to the venue for those discussions; and
  • to establish common time limits for ling unfair dismissal and general protections claims (21 days).

There is also support in the form of recent comments by Prime Minister Rudd that the FW Act represents a ‘reasonable balance for the future’, and is looking to a more collaborative approach between the Government, business and unions to make more effective use of the current legislative regime.1

The Coalition has also confirmed that it will retain the current legislative framework, but ‘work to improve’ the operation of those laws, including by adopting some of the outstanding recommendations from the Fair Work Review Panel.

Other Coalition policy initiatives that may result in amendments to the FW Act include:

  • further ‘improvement’ of the FWC, including (potentially) the creation of an independent appeal jurisdiction;
  • changes to right of entry laws to limit union access to the workplace;
  • re-establishing the Fair Work Building Commission / abolishing Fair Work Building Construction;
  • removal of the current restrictions on Individual Flexibility Agreements under the FW Act, and otherwise not introducing Australian Workplace Agreements;
  • broadly supporting the FW Act changes in relation to workplace bullying, with the possibility of further change which will require employees to first seek assistance and impartial advice from an independent regulatory agency, and to expand the coverage of the anti-bullying provisions so as to include the conduct of union officials towards workers and employers; and
  • changes to the FW Act with respect to protected industrial action, including allowing such action to occur only after there have been ‘genuine and meaningful’ talks between employees and employers, as opposed to the ‘strike first, talk later’ approach currently provided for under the Act.

Productivity

The issue of productivity, and specifically how productivity may be improved through the workplace relations system, is central to the workplace relations policies of the ALP and the Coalition.

It has been suggested in a number of fora that the FW Act operates to hamper productivity and/or that the issue of productivity was not sufficiently prevalent in the terms of reference for assessing the operation and impact of the FW Act during the Fair Work Act Review.

Prime Minister Rudd recently defended the FW Act in the context of discussion about Australia’s competitiveness and potential rigidities in the labour market, saying that:

  • some businesses may not be making the ‘most effective use of the FW Act to drive the productivity outcomes they need for the future of their businesses’; and
  • discussions have occurred between the Government, business and unions regarding ‘how we can harness a greater spirit and practice of industrial cooperation to produce better outcomes for us all’.2

The Coalition, on the other hand, claims that productivity has declined under the FW Act when compared with that under WorkChoices, and has proposed that a further review of the FW Act be conducted by the Productivity Commission ‘to ensure that Australians have the benefit of an objective, comprehensive and factual assessment’ of the Act’s operation and impact.

Paid Parental Leave

One of the key initiatives introduced by the Labor Government since it returned to power in 2007 is the Paid Parental Leave Scheme. That scheme currently provides up to 18 weeks’ pay for eligible working parents at the rate of the National Minimum Wage (currently $622.10 per week).

The Coalition has proposed as part of its policy platform a paid parental leave scheme providing mothers with 26 weeks’ paid leave at full replacement wage or the National Minimum Wage (whichever is greater), plus superannuation.

The Rudd Government has stated in response to this proposal that it is inequitable and, because of the social insurance schemes of many European OECD countries on which the Coalition’s scheme is modelled, may ultimately be unsuitable as they are not like the family payments and income support systems adopted in Australia.3

Greenfields Agreements

For some time parties have raised concerns about the negotiation of greenfields agreements for new business ventures and projects under the FW Act, and the threat posed to future investment in major projects in Australia, particularly by intractable bargaining disputes.

The concerns were recognised by the Fair Work Review Panel. The Panel recommended amendments to the FW Act to provide that, where negotiations for greenfields agreements reach an impasse, a specified time period has expired and conciliation through the FWC has failed, ‘that the Commission may, on its own motion or on application by a party, conduct a limited form of arbitration, including ‘last offer’ arbitration, to determine the content of the agreement’.4

In the face of opposition from employer groups, the Government has, to date, unsuccessfully sought to pass its proposed amendments to the FW Act to give effect to this recommendation of the Fair Work Review Panel. However, recent comments by Prime Minister Rudd reflect that if returned to power, the Rudd Government will continue to seek changes in this regard.5

The Coalition have proposed a different approach to greenfields agreements, requiring negotiations for greenfields agreements to be completed within three months, with the FWC to be given powers to make and approve greenfields agreements after this time so long as the agreement provides conditions consistent with prevailing industry standards.

Further Policy Initiatives Proposed by the Coalition

The Coalition also proposes to:

  • provide ‘practical assistance to small businesses’ through compliance
    and education initiatives, and potential immunity from pecuniary penalty prosecutions in specific circumstances;
  • change the Registered Organisation Rules and legislation to adopt similar standards for the organisations and their officials to those applying to corporations and their directors, improving financial disclosure rules, and creating a new ‘watchdog’, the Registered Organisations Commission; and
  • review the future of the Road Safety Remuneration Tribunal.

Conclusion

Workplace relations is likely to feature heavily in the policy debate between the major parties in the lead up to the 2013 federal election. Through that debate the policies of each of the parties will be refined and increasingly well-defined. We will continue to monitor the debate with great interest as it is set to shape the workplace relations landscape into the foreseeable future.


  1. Prime Minister Kevin Rudd, “The Australian Economy in Transition: Building a New National Competitiveness Agenda”, Speech to the National Press Club, Canberra, 11 July 2013.
  2. Prime Minister Kevin Rudd, “The Australian Economy in Transition: Building a New National Competitiveness Agenda”, Speech to the National Press Club, Canberra, 11 July 2013.
  3. Minister for Families, Housing, Community Services and Indigenous Affairs Jenny Macklin, Speech at the Fifth International Community, Family and Work Conference, 17 July 2013.
  4. Fair Work Review Panel, “Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation”, June 2012, Recommendation 30.
  5. Prime Minister Kevin Rudd, “The Australian Economy in Transition: Building a New National Competitiveness Agenda”, Speech to the National Press Club, Canberra, 11 July 2013.
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