Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

“Strike first, talk later”

The catchphrase “strike first, talk later” is a disingenuous misrepresentation of the state of the law that has spawned an entirely unnecessary and oppressive legislative reform proposal contained in Part 7 of the Fair Work Amendment Bill 2014. The ability to take strike action to compel an employer to bargain has been a feature of the industrial relations system for as long as protected industrial action itself has been such a feature⁴⁴². It is part and parcel of requiring that the party that is seeking to take protected action is “genuinely trying to reach agreement”. To reward employers with immunity from industrial action where they are deliberately non-responsive to bargaining claims runs directly counter to the purposes and objectives of industrial relations system as expressed in our introductory chapter and within the text of the FW Act.

Collective bargaining disputes and arbitration

The role and powers of the FW Commission in respect to the resolution of industrial disputes between parties to collective bargaining, remains an important issue of productivity and fairness in the workplace, notwithstanding the legislative emphasis upon the parties directly involved in resolving their own issues.

There are two distinct aspects to this question. The first concerns the proper role of the tribunal in respect to bargaining disputes, during which the ‘interests’ of the parties are still in play.

The second aspect concerns the ongoing role (if any) of the FW Commission in dealing with disputes that might emerge in respect to the application of a concluded enterprise agreement, or more generally, in relation to employment related grievances that are processed through the dispute settlement procedure of an agreement. Both aspects have been the subject of controversy during the operation of the FW Act and are a point of serious disagreement between particular employer interests and the union movement.

The position advanced by the ACTU is that the framework of dispute resolution in the context of a system of collective bargaining must primarily be guided by pragmatism and common sense, albeit within the confines of what our international obligations permit. In particular, it is important that the power of the FW Commission to arbitrate in respect of both ‘interest’ disputes and in circumstances where a dispute exists over a bargain that has already been struck, is approached from the perspective of how to make the system work better, rather than some pre-determined position that denigrates any substantive role for an ‘external’ industrial tribunal in dispute resolution.

In particular, we believe that the arbitration pendulum has, at a practical level, swung too far in the direction of non-intervention since the introduction of enterprise bargaining in the early 1990’s. This is manifested in two features of the legal architecture of the FW Act:

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  ‘Interest’ arbitration⁴⁴³ of collective bargaining disputes is practically unattainable, unless one party (as in the case of Qantas in 2011) is able to inflict massive damage on the economy, or a significant part of it; and
  

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  The question of whether the FW Commission is able to arbitrate on a dispute arising from the operation of an enterprise agreement is a largely matter for bargaining itself, leading in practice, to many major corporations imposing an effective veto on access to arbitration during the term of agreements.
  

Whilst the FW Act does introduce some changes to the legal formula dictating access to arbitration of industrial disputes,⁴⁴⁴ the broad approach to the arbitration of industrial disputes has not departed significantly from the legal architecture of the WR Act. Putting aside the possibility of both bargaining parties willingly submitting to arbitration of their dispute under s240 of the FW Act, access to arbitration is clearly confined to circumstances where the FW Commission cancels bargaining under one or more specific grounds which are loosely informed by international obligations. A power is also conferred on the Minister to unilaterally terminate industrial action thus triggering arbitration (which is clearly not referable to or consistent with international obligations).

The nexus between bringing industrial action to an end and triggering of compulsory arbitration is embedded in our system. At an international law level, this directly engages two principles:

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  That workers and employers organisations shall have the right to organise their activities and formulate their programs⁴⁴⁵; and
  
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  Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers negotiations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.⁴⁴⁶
  

In reviewing laws of Australia and other jurisdictions as part of its regular surveys, the ILO’s Committee of Experts on the Application of Conventions and Recommendations has dealt with a number of national laws where this nexus exit. Its position may be summarised as follows:

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  Arbitration at the request of one party is generally contrary to the principle of voluntary negotiation. A negotiated agreement, however unsatisfactory, is be preferred to an imposed solution and therefore the parties should always retain the option of returning voluntarily to the bargaining table;
  
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  Arbitration to end a strike is acceptable only if it is at the request of both parties, or if the strike is one which may permissibly brought to an end. A strike that may permissibly be bought to end is one which:
  
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    Involves public servants that exercise administrative authority in the name of the State;
    
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    Involves essential services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population; or
    
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    That is causing an acute national or local crisis.
    

The FW Act provides that FWC can terminate protected industrial action in three main circumstances under sections 423, 424(1)(c) and 424(1)(d) of the FW Act. Each of these applications is theoretically available to either employers or employees, though in practice have generally been more accessed by employers. If the FW Commission does terminate industrial action in accordance with one of the abovementioned provisions it must then proceed to arbitrate the issues in dispute and issue a workplace determination⁴⁴⁷ once the mandatory 21 day negotiation period has passed without agreement.⁴⁴⁸ A workplace determination has the same effect as an enterprise agreement,⁴⁴⁹ except that its terms are imposed on the bargaining parties.

Access to arbitration under relevant provisions of the FW Act are described under the headings below.