The human rights of workers have never really been recognised under Australian labour law (at least not in those terms). WorkChoices has stripped away most of the few remaining rights that workers enjoyed. For these reasons, among others, I support the development of a Charter of Employment Rights in Australia.
In this piece, I will make a few comments about the concept of a Charter, and then explore what I see as three essential elements of its content — the bargaining, representation and participation rights that all workers deserve.
The Concept of a Charter of Employment Rights
The idea of protecting of workers' interests through a ‘rights' framework is timely. We have recently seen the adoption of human rights legislation in both the ACT and Victoria. This may reflect a greater willingness amongst the Australian community to engage with individuals' or citizens' rights than has been the case in the past.
However, a few fundamental questions arise when we come to consider the idea of a ‘Charter of Employment Rights', for example:
- Whose rights are we talking about? Clearly, those of individual workers — but if there is to be a Charter of Employment Rights, it will need to deal with the rights of employers, so it covers both parties to the employment relationship. And what about trade unions? It may be that the organisational and other rights of unions are better championed through other campaigns, than through a Charter of Employment Rights — although, clearly, many of the rights of individual workers (e.g. to union representation in bargaining) will involve ‘flow-on' rights to collective organisations representing workers' interests.
- Is the Charter process just about rights, or should it also deal with responsibilities? I think it almost has to, because setting out the rights of workers and employers necessarily implies that they owe each other certain obligations. This could also broaden the popular appeal of the Charter, as it presents ‘rights' in a way that is fair and even-handed.
The Content of a Charter: Bargaining, Representation and Participation Rights
These three sets of rights have taken a battering under the Coalition Government, and (in the case of bargaining and participation rights) were not adequately provided for under previous Federal labour legislation. For these reasons, I think they must form the core of any Charter of Employment Rights. I will now briefly consider each of them in turn.
Australian workers have never had fully-developed rights to engage in collective bargaining. Instead, they had a strong awards system. The 1993 reform legislation introduced some restricted bargaining rights, including powers for the Australian Industrial Relations Commission to make ‘good faith bargaining' orders, and the notion of ‘protected' industrial action.
However, as things now stand (particularly following the WorkChoices amendments), no worker has a right to be covered by a collective agreement. Putting it another way, employers have no obligation to negotiate a collective agreement with employees or their union (as we have seen in the Boeing dispute, and many other examples in recent years). Even if employers do engage in collective bargaining and an agreement is reached, an employer could walk in the next day and offer the workforce individual Australian Workplace Agreements.
|Thanks to Sean Leahy|
This makes Australia the ‘odd one out' among other major industrialised economies, e.g. the UK, US and Canada — all of which provide in some way for a right to collective bargaining, where this is supported by a majority of the workforce. The recent ACTU Congress endorsed proposals for a new collective bargaining system for Australia, based squarely on this notion of union recognition and bargaining rights flowing from a union establishing majority support in the workplace.
Sensibly, in my view, the ACTU has steered clear of mandatory employee ballots and other complex legal procedures that are features of some overseas IR systems. The focus of the ACTU's plan is largely on the bargaining and recognition rights of unions under a new collective bargaining framework.
For the purposes of a Charter of Employment Rights, I would like to see the focus shift to the rights of individual workers to be covered by whatever form of agreement they prefer — and whether they want an individual or collective agreement, there should be a statutory framework setting down the rights and obligations of all negotiating parties and their representatives.
That is, a system of ‘good faith bargaining', based (for example) on the NZ model, which includes duties to: meet to arrange a process for the conduct of bargaining, and adhere to that process; consider and respond to proposals made by the other party; disclose information to substantiate claims, and so on. These processes are backed up by an impartial dispute resolution body with ‘facilitation' and (ultimately) arbitration powers, to resolve bargaining impasses.
The traditional focus in Australia has been on the organisational rights of unions, through ‘union security' provisions in industrial legislation and awards (which were repealed by the 1996 and 2005 amendments). Again, the focus here needs to switch to workers' rights — primarily, to join a union (or not) — and if they do, to have the union represent them in relation to a range of workplace matters, e.g. those covered by grievance and dispute resolution procedures.
The basic right to join a union is currently protected under the notion of ‘freedom of association', but case law since 1996 (mainly, the BHP Pilbara Iron Ore litigation) has shown this to be inadequate. There, the Federal Court found that the right to be a union member only included the right to hold a membership ticket, and did not extend to any of the incidents of union membership — especially, the right to collective bargaining.
So, under a Charter of Employment Rights, if workers want to be represented in bargaining by a union, employers should have to recognise and bargain with their chosen representative (and vice versa).
I am referring here to the right of workers to play some part in fundamental decisions that affect them — i.e. workplace democracy rights, especially in relation to business restructuring issues. There have been countless examples in the last 5-6 years of companies ‘going under', or restructuring through closures, relocations, mergers, or retrenchments — and workers are usually among the last to find out! For example, the Ansett, HIH and One.Tel collapses in 2001; more recently, the car industry disputes following insolvencies at Huon Corporation and Ajax Fasteners; and job cuts at companies including Amcor, Electrolux, Ford, Qantas and Coles Myer.
Just like many European countries (even, now, the UK) and NZ, we need in Australia to ensure that workers' democratic rights of participation do not stop at the factory gate or the office door. This can be achieved through a bundle of rights that provide employees with: access to information about company financial performance, any concerns about the firm's continued operation, or potential insolvency, and any restructuring proposals that could adversely affect workers' interests; the right to meaningful consultation (through the workers' chosen representatives) in advance of such proposals; and negotiation rights over business restructuring issues, including mechanisms to resolve disputes.
There is another question as to whether we should also adopt the European-style structures through which workers exercise these rights, i.e. works councils. My view is yes, we should do that in non-union workplaces — otherwise, unions should act as the representative body under any new system of workplace participation rights (but that is a debate for another day).
Finally, it must be possible to formulate these rights in a way that balances the legitimate interest of employees in job security, with employers' concerns about enterprise productivity and competitiveness. Much overseas experience shows that high-consultation management approaches can achieve both these objectives.
In conclusion, it is essential that any proposed Charter of Employment Rights addresses the significant gaps in the current legal framework regarding the bargaining, representation and participation rights of Australian workers.
This is the edited text of a presentation to the Australian Institute of Employment Rights Forum on a Charter of Employment Rights for Australia, held at the 3rd Australian Labour Law Association National Conference, Brisbane, 22 September 2006.
i See Workers' Human Rights in Australia (CELRL Working Paper No 39, August 2006); and Colin Fenwick and Ingrid Landau, ‘Work Choices in International Perspective' (2006) 19 AJLL 105.
ii Human Rights Act 2004 (ACT).
iii Charter of Rights and Responsibilities Act 2006 (Vic).