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

Public Sector regulation should differ from private sector regulation

The standing of the Crown as employer, legislator and policy determiner further supports the need for differing systems of regulation of employment in the public sector.

Government has the unique ability to amend the legislative and regulatory framework to suit its agenda as an employer. It also possess an unparalleled ability to unilaterally remove conditions and impose restrictions on bargaining.

There is a deep disparity between the power of Crown employees and the power of their employer. The economic power and resources available to the Crown means it has a relatively unlimited capacity to engage in lengthy disputes with its employees, to initiate and fund Court and Tribunal proceedings and engage in strategic delay (for example, bargaining with APS agencies had already been progressing for 15 months at the time of writing, with no agency concluding an agreement). Further, the relevant governmental decision makers who lie outside the barrier of the enterprise or agency whose employees are bargaining are practically (if not also legally) beyond the reach of dispute resolution functions that could otherwise be more useful in assisting an agreement being reached.

A tribunal with more robust powers is required when bargaining against the Crown

The New South Wales, South Australian, Western Australian and Tasmanian systems all have a tribunal vested with superior arbitral powers.

The capacity of the New South Wales Commission to arbitrate decisions is broader (in a general sense) than the Federal tribunal but the jurisdiction of the NSWIRC is arbitrarily limited to prevent it from making awards with terms and conditions for state public sector workers in the manner elaborated in the section below entitled “statutory limits of bargaining in NSW”

This places Victorian public sector workers and federal public sector workers at a significant disadvantage against the significant resources and sovereign power of the Crown. The powers of intervention in the FW Commission are often insufficient counterweight to the power of large, well resourced employers. Moreover, there is a real risk that “soft touch” approaches through conciliation are fruitless if central policy prohibits agencies – the employer – from agreeing to conciliated outcomes.

The rationale for the previous Federal industrial relations systems based on conciliation and arbitration was to allow parties access to arbitration in place of the dislocation caused by strikes and lockouts. In the current federal system the tribunal is more a bystander in a contest between bargaining parties with power to grant procedural rights.

The only capacity vested in the FW Commission to arbitrate is the power to make a workplace determination. This power can be used by the FW Commission for a “bargaining related workplace determination” which is provided on the basis of a “serious breach declaration” following a series of failures to comply with good faith bargaining orders⁵⁰⁰ or an “industrial action workplace determination” which follows the termination of industrial action which has either caused or threatened to cause significant economic harm under s423, or endangering life, personal safety or health under s424. The practical output of this is that in order to progress bargaining claims, bargaining representatives are forced to escalate to more disruptive industrial action in order to either force concessions or to move towards a workplace determination.

The capacity of many public sector workers to compel concessions is limited. The good faith bargaining framework does little to assist, and their right to take protected industrial action is blunted in many cases because public sector industrial action inevitably gives rise to claims for suspension or termination of the industrial action either because it “causes or threatens significant economic harm” under s423 or “threatens or endangers the life, personal safety or welfare of the population or part of it” under s424 of the FW Act. For example, child protection workers or prison officers quickly fall foul of the “threats to the welfare of the population or part of it” which essentially denudes them of a right to strike which the FW Act is designed to confer.

To be blunt, there is more than a suggestion that public sector bargaining takes the course it does precisely because governments take a conscious decision to exploit the limitations of the existing system to achieve delay – not only procedural delays but also substantive delays brought about by engineering circumstances that lead to offers being rejected. Taking the current round of APS bargaining as an example:

• 
  Of the 19 agencies that have made offers, most involve wage rises of less than 1% and cuts to conditions;
  
• 
  The agencies with which the union is required to negotiate are under an instruction that they seek must external approval for any discussions over wages;
  
• 
  It is a policy requirement, binding on negotiating agencies, that they refuse to negotiate particular “core” conditions and remove content from existing agreements;
  
• 
  The union was forced to take steps toward seeking a majority support determination (which ultimately could have involved ascertaining the views of nearly 160,000 employees) in order to cajole some agencies to bargain at all.
  

Public sector bargaining under the FW Act would be better facilitated if the power to issue bargaining orders was supplemented by broader powers to arbitrate bargaining disputes beyond the power to make workplace determinations following the termination of protected action. As raised in Chapter 14, the preferred model is not one where arbitration is possible as of right, but rather the FW Commission should have more flexibility in its involvement in bargaining disputes wherein active conciliation and the more real prospect of arbitration influences the course and dynamic of bargaining. As also raised in Chapter 14, the requirement to bargain in good faith needs to move from the procedural to the substantive.

It should be noted that, in earlier times, there was a more direct route to arbitration for public sector workers based on impasse - one of the four considerations we refer to in Chapter 14. Following the Industrial Relations Reform Act 1993, the AIRC could arbitrate following the termination of a bargaining period once there was an impasse in bargaining for workers “whose wages and conditions were regulated by a paid rates award” (a proxy for public sector employment⁵⁰¹) where there was “no reasonable prospect of the negotiating parties reaching agreement”⁵⁰².