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September 2007 Election 2007: Industrial relations policyThe most valuable initiative that any Australian government could take in the present industrial relations climate would be the establishment of a properly funded and staffed Worker Advocacy Service to assist ordinary working Australians in negotiating their working arrangements and handling workplace disputes. In my time as a lawyer—both in practice and as an academic—I have often observed that ordinary working people do not have the resources to claim the rights that workplace laws appear to have given them. Ordinary working people—acting individually—often lack adequate information about their legal rights, and they frequently, if not invariably, lack the financial resources to claim those rights, if an employer chooses to ignore them. Privately engaged lawyers are expensive. Pro-bono services are limited.
Unions act only for their members, and union membership is declining
(Australian Bureau of Statistics 2006; Barnes 2006). If
The Worker Advocacy Service would not be the same as either of the existing federal bodies—the Workplace Authority (formerly the Office of the Employment Advocate (OEA)) or the Workplace Ombudsman (formerly Office of Workplace Services (OWS))—because it would be dedicated to the assistance of workers. The OEA as it was originally established actively promoted the use of Australian Workplace Agreements (explained below). Its activities in policing the freedom of association laws introduced in 1996 focused on eradicating union closed shops. The OEA was an advocate for ‘employment’ and perhaps for employers, but had no clear mandate to support workers. Also, existing federal agencies support the enforcement of the Workplace Relations Act (WR Act) only. Workers have rights under other sources of law, including the common law and discrimination statutes. Workers would benefit from access to a single agency empowered to assist them in understanding and enforcing all of their legal rights at work. Some worker advocacy services are already provided by not-for-profit
Community Legal Centres. One of these centres—Job Watch Inc, in NEGOTIATION OF WORKING CONDITIONSIn the days of ‘closed shops’ and preference clauses in industry-wide awards, most ordinary workers had the benefit of trade union representation and compulsory conciliation and arbitration to negotiate decent wages and working conditions. In 1996, the Workplace Relations and Other Legislation Act reduced arbitrated awards to a minimalist safety net, and outlawed closed shops, and introduced single business enterprise bargaining. Union membership was already in decline, however these changes further impaired the capacity of the trade union movement to negotiate working conditions for all Australians. The WorkChoices laws introduced with effect from 27 March 2006 completely abandoned conciliation and arbitration of new awards and further stripped back the matters that could be covered by existing awards. The present government’s philosophy is that workplace relationships are private matters, to be determined by employers and their individual employees, without interference of ‘third parties’ such as unions and industrial tribunals. Its preferred industrial instrument is the Australian Workplace Agreement (AWA), which enables employers to negotiate flexible working arrangements with their individual employees. AWAs allow escape from the obligations imposed by awards and collectively negotiated enterprise bargains, and need only observe the very minimal conditions required by the Australian Fair Pay and Conditions Standard, set out in the Workplace Relations Act 1996 (Cth) Part 7, and a limited ‘fairness test’ introduced in July 2007. Now many aspects of a working relationship are governed only by the common law of contract. Even the Australian Labor Party’s Forward with Fairness Policy (Rudd & Gillard 2007, p. 14) proposes that workers may make ‘individual flexibility arrangements’ with employers, which depart from the terms of a collectively negotiated agreement.
Contract law presumes a private bargain struck between autonomous and self-interested parties. Contract law has long been criticised as an unfair mechanism for regulating working relationships, because of an inherent imbalance in bargaining power between the employer and the individual worker (Wedderburn 1986, p. 48). If we are nevertheless to continue to rely on forms of individual contracting, then an effective means of balancing bargaining power—of ‘levelling the playing field’—is warranted. A publicly funded Worker Advocacy Service may assist in that task. RECIPROCATING RIGHTS TO ‘FLEXIBILITY’At a Workplace Relations Summit held in Sydney on 14 March 2007, when the Minister for Workplace Relations, Joe Hockey, was invited to speak in defence of the WorkChoices laws, he recited anecdotes of people who have greeted him in country towns, enthusing about the new flexibility they were able to enjoy as a consequence of making an AWA: ‘Now I can pick up my son after work once a week, and take him to soccer training’; ‘Now I can start work later, so that I can care for my elderly mother in the mornings’; ‘Now I can work hours that fit in with my studies’ (Hockey 2007). The kind of flexibility that accommodates our family and social commitments is surely a good thing and it is supported by both sides of politics (see Rudd & Gillard 2007, p.14). The problem with the WorkChoices laws, however, is that it is completely up to the discretion of the employer whether that flexibility is going to be allowed. AWAs are often offered on a ‘take-it-or-leave-it’ basis, and reflect the employer’s preferences, without accommodating employee preferences. The right under legislation to appoint a bargaining agent is a hollow right if workers do not know where to find such an agent and have no means to engage an agent’s services. A Worker Advocacy Service would provide personnel to assist workers to negotiate their working conditions, so that the worker’s preferences could also be accommodated in the ultimate agreement reached. Worker Advocates would be knowledgeable about a range of workplace rights, including Australian Fair Pay Scales and minimum conditions; conditions that the worker would otherwise be entitled to under an award; workers’ rights under common law employment contracts; and rights to be free of discrimination on the basis of disability, sex, family responsibilities and a range of other factors. If workers also enjoyed a right to request flexible working conditions, and employers owed a corresponding obligation not to unreasonably refuse to accommodate such a request (Murray 2005, pp. 328–330), Australian workers may gradually come to genuinely enjoy real ‘choice’ in their own working conditions. A Worker Advocate could assist workers in negotiating those requests. ASSISTANCE WITH DISPUTESThe law reports are full of terrible stories about workers who have suffered great harm because they have not been able to deal with a workplace problem, and have suffered intolerable circumstances until they became ill, sometimes to the point of becoming unemployable. See for example Naidu v Group 4 Securitas Pty Ltd [2006] NSWSC 144 (15 March 2006). In this case, a security guard employed by a labour hire company was posted to work at a client’s business. The supervisor at the client firm bullied and abused him—and even required that he do handyman jobs for him at the supervisor’s home on weekends. Mr Naidu was not given any assistance or support by his labour hire employer, because they did not want to lose the client. In the end, Mr Naidu suffered clinical depression from his mistreatment, and this lead to family problems as well has health problems. Early intervention in this problem may have saved a great deal of grief. Ultimately, both employers paid a substantial financial price for their lack of regard for Mr Naidu’s health and safety at work. A Worker Advocacy Service would be able to offer workers advice and assistance in dealing with problems at work, before those problems festered to the point of causing irreparable harm to the worker and the working relationship. TERMINATION DISPUTES
Federal workplace laws have withdrawn many Australians’ rights to seek reinstatement if they have been unfairly dismissed from employment. The loss of these rights for the employees of ‘small’ businesses with 100 or fewer employees was justified on the unproven basis that unfair dismissal laws contributed to unemployment levels (Pittard 2006, p. 227). Even if we do not seek to reintroduce broad rights to reinstatement after unfair termination, there is good reason to provide workers with the assistance of a Worker Advocate in settling the terms of severance from their employment. Worker Advocates could properly advise workers on the amounts of notice they are entitled to receive (under the common law as well as any award or statutory agreement), on their rights to pay-out of accrued leave entitlements, and on other claims. Common law contract rights have developed in recent years. A number of cases involving highly paid workers have established that employers have an implied duty to not to destroy employees’ trust and confidence. For elaboration of this common law right see Riley (2005, pp. 66–95). Unfortunately, claims for breach of an employment contract are notoriously difficult and expensive to bring. If ordinary workers are also to enjoy the benefit of these legal developments, they need a publicly funded advocate to assist them. Ideally, the assistance of a knowledgeable advocate would lead to reasonable settlements of such a claim, rather litigation. POST EMPLOYMENT RESTRICTIONSWorker advocates may also assist workers in understanding any post-employment obligations that an employer is seeking to enforce (Riley 2005, pp. 178–194). Some employers try to prevent departing workers from working in competing businesses, or dealing with former clients or co-workers. Many of the restrictions that employers seek to impose on workers are legally dubious. They may amount to illegal restraints of trade and be unenforceable. Often, however, a departing worker will not know their legal rights and may be intimidated into surrendering their liberty to compete in a free market with a former employer by these onerous contracts, especially if an employer threatens legal action. A knowledgeable Worker Advocate could assist workers to deal with these issues as well. BENEFIT OF A NEW SERVICE, WITH A NEW CULTUREThe existing Workplace Authority (formerly named the OEA) does not demonstrate a culture friendly towards assisting workers. An example of the OEA’s weakness in assisting vulnerable workers is documented in the New South Wales Industrial Relations Commission’s Child Employment Principles Case 2007 [2007] NSWIRComm 110 at paragraph [77]. This case tells the story of young Christopher James, who was made to work not one but a number of unpaid ‘training’ shifts for a fast food outlet. When his mother sought advice about his workplace rights from the OEA she was told that the OEA could not give her information about any AWA registered by the son’s employer ‘because of privacy considerations’. Christopher himself was told that the OEA would not contact him about his complaint unless it was able to establish that an AWA had been registered covering his employment. He heard nothing more. A Worker Advocacy Service with a mandate to pursue the full range of worker rights would not be so impotent to act upon clear workplace injustices. WHAT ABOUT THE ‘MODEL DISPUTE RESOLUTION PROCESS’ UNDER THE WR ACT?
Some may argue that current federal law already supports inexpensive and efficient dispute resolution by supporting recourse to ‘alternative dispute resolution’. The trouble with the model proposed by the WR Act Pt 13 is that it does not identify how workers can identify their own advocates, to ensure that this private model of dispute resolution does not further entrench the power of employers to insist on settlements that favour their own interests (Riley & Sarina 2006). SHOP-FRONT ORGANISATIONA Worker Advocacy Service would need to be visible in the community. Although there are presently some Community Legal Centres who do (some of) the work suggested here, they are limited to certain locations, and their services are not widely known. A visible Worker Advocacy Service should have the same presence—in city, suburban and regional centres—as other government services, such as Medicare or Centrelink. It may be organised along similar lines to the old Commonwealth Employment Service. Indeed, once properly established, its services may be devolved to organisations tendering for the work, as happened with the CES. One day, perhaps, when trust in Australia’s trade unions is restored, unions may tender for roles in the system, just as unions have played an important role in supporting retirement incomes for working Australians by establishing and managing efficient superannuation funds. COSTThe cost of funding a Worker Advocacy Service could be supported by a combination of funding from consolidated revenue (those huge budget surpluses might be put to some good) and levies payable by both employers and employees (similar to the superannuation fund guarantee levy on employers, and the Medicare levy on employees, although the levies would not need to be nearly so high as these). The existence of a widely known and understood service such as this may assist in educating the community more generally about rights at work, and may ultimately lead to improvements in workplace culture. If the service is successful, it may reduce workplace disputes, and ultimately be a relatively inexpensive service. CONSTITUTIONAL ISSUESThe Australian Constitution allows the Commonwealth to make laws with respect to ‘external affairs’: s 51(xxix). Australia has ratified a great many International Labour Organisation Conventions, supporting workers’ rights to fair and equal treatment at work. Laws establishing a Worker Advocacy Service would be appropriate and adapted to giving domestic effect to those international obligations. Legal rights under international and domestic laws are of little benefit to ordinary workers if they are not able to understand nor effectively assert those rights. A Worker Advocacy Service could ensure that Australians really do know ‘where they stand’ regarding their workplace rights. REFERENCESAustralian Bureau of Statistics 2006, Employee Earnings, Benefits and Trade Union Membership, Cat. No. 6310.0, Australian Bureau of Statistics, Canberra. Barnes, A. 2006, ‘Trade unionism 2006’, Journal of Industrial Relations, vol. 48, no. 3, pp. 369–383. Hockey, J. 2007, Keynote address, Australian Workplace Relations Summit 2007, Sydney, 14 March [Online], Available: http://www.joehockey.com/mediahub/speechDetail.aspx?prID=241 [2007, Sep 9]. Murray, J. 2005, ‘The AIRC’s test case on work and family provisions: The end of dynamic regulatory change at federal level?’, Australian Journal of Labour Law, vol.18, no. 3, pp. 325–343. Pittard, M. 2006, ‘Back to the future: Unjust termination of employment under the WorkChoices legislation’ Australian Journal of Labour Law, vol 19, no. 2, pp. 225–241. Riley, J. 2005, Employee Protection at Common Law, Federation Press, Sydney. Riley, J. & Sarina, T. 2006, The new conflict managers: A critical assessment of Alternative Dispute Resolution methods under WorkChoices, paper presented to the New Actors and Institutions in Australian and New Zealand Industrial Relations Conference, The University of Sydney, 3 November. Rudd, K. & Gillard, J. 2007, Forward with Fairness Policy Implementation Plan, Australian Labor Party, August [Online], Available: http://www.alp.org.au/download/now/070828_dp_forward_with_fairness.pdf [2007, Sep 9]. Wedderburn, Lord, 1986, The Worker and the Law, 3rd Edition, Sweet & Maxwell, London. Dr Joellen Riley is Professor in the Faculty of Law at the University of New South Wales. View other articles for Election 2007:
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