Worker representation in Australia: moving towards overseas models?

Australian Bulletin of Labour, March, 2007 by Anthony Forsyth

Abstract

This article examines how far, and in what ways, overseas systems of worker representation are influencing the Australian debate. After briefly exploring the diminution of legal support for worker representation over the last 15 years, the article contains a detailed analysis and comparison of recent policy proposals put forward by the Australian Council of Trade Unions and the Federal Labor Opposition. The ACTU policy draws heavily on the United States, Canadian and United Kingdom collective bargaining and union recognition systems, along with North American and (particularly) New Zealand concepts of 'good faith bargaining'. Key aspects of these overseas systems are highlighted. In contrast, the ALP industrial relations policy is a substantially diluted version of the ACTU blueprint, involving only minimal 'borrowing' from overseas worker representation laws. Importantly, stronger supports for collective bargaining--such as the NZ mechanism for arbitration of bargaining impasses--have been omitted from Labor's policy. If implemented, this would see the emergence in Australia of a blend of several overseas worker representation models, resulting in some improvement to the current legal framework's subversion of collective bargaining--but not to the extent desired by the ACTU.

1. Introduction

The legal arrangements for worker representation in Australia are currently in a state of flux. The traditional model, based on Australia's unique system of compulsory conciliation and arbitration with strong representation rights for trade unions, was all but done away with by the Howard Coalition (conservative) Government's 2005 'Work Choices' legislation. (1) And with a Federal election due to be held by the end of 2007, the Labor Opposition recently adopted a new industrial relations policy (1) that would consign the once-impregnable Australian Industrial Relations Commission ('AIRC') to the dustbin of history. In its place, Labor would establish a body known as Fair Work Australia ('FWA'). FWA would combine the advisory, dispute resolution, minimum-wage setting, enforcement and judicial functions of several Federal Government bodies into one central agency. (2) One of FWA's main roles would be to oversee the new good faith bargaining ('GFB') framework outlined in Labor's policy, which is premised on the notion of collective bargaining rights flowing from a union's capacity to demonstrate 'majority support' among the workforce. (3)

The articulation of such a policy position by Labor follows a period of serious reflection, on the part of the Australian union movement, as to the kind of labour laws needed to strengthen worker representation rights in the post-Work Choices era. Led by the Australian Council of Trade Unions ('ACTU'), this process has involved consideration of the legal processes found in a number of other major industrialised economies. In April-May 2006, the ACTU sent a delegation to examine the union recognition and collective bargaining systems operating in New Zealand, Canada, the United States, and the United Kingdom. The ACTU had also commissioned research on these overseas jurisdictions, along with those of Italy, Germany and Sweden. (4) This examination of foreign models for ordering bargaining and representation rights influenced the final shape of the collective bargaining policy ultimately adopted by the ACTU in September-October 2006. (5)

The main aim of this article is to consider how far, and in what ways, overseas systems of worker representation are influencing the Australian debate. The next section briefly examines how Australian law historically bolstered worker representation, and the ways in which that support has been diminished in the last 15 years, especially by the Work Choices Act. This is followed (in section 3) by a detailed outline of the ACTU and ALP policy proposals. In section 4, the ACTU policy is subjected to closer examination, highlighting the extent and manner of its reliance upon overseas models of union recognition and collective bargaining; and focusing on the legal arrangements operating in the US, Canada, the UK and NZ. This discussion paves the way for an assessment of the extent to which the ALP policy, in turn, draws upon these overseas industrial relations systems (section 5). It is concluded that while borrowing elements of UK and North American labour law, certain features of the NZ system which might provide stronger support for collective bargaining have been omitted from Labor's policy, thus detracting (to some degree) from suggestions that the ALP is simply proposing to hand back power to the unions. Finally (in section 6), some observations are made about the future prospects for worker representation under Australian law.

2. Worker Representation: from Compulsory Arbitration (1904) to the Work Choices Act (2005)

Australian labour law traditionally provided extensive support to worker representation through the conciliation and arbitration system, and the central role accorded to unions within that system. In addition to coverage and organisational rights, unions obtained de facto recognition from employers through the capacity to notify disputes to the AIRC (and its predecessors). This triggered compulsory dispute resolution processes, usually leading to the determination of a binding 'award' that comprehensively regulated terms and conditions of employment. (6) The legal and institutional support provided to unions contributed greatly to their growth and organisational security over the course of the twentieth century--such that by 1953, trade union membership had reached 63 per cent of the total labour force, and remained around 50 per cent until the early 1980s. (7)