.
INDUSTRIAL
RELATIONS LEGISLATION
INDUSTRIAL
RELATIONS... or PERHAPS
THE LACK OF THEM!
For some time now,
Industrial Relations Law Reform has been the rallying point for small business
in Australia… and rightly so.
Over the last
fifteen years we have seen an industrial relations system that had worked
reasonably well modified, not only in scope but also in attitude. We had
Industrial Commissions whose “orders” were ignored with impunity but by and
large the results of these Commissions were not too bad. Outcomes that left the
parties with dignity and some real sense of achievement were positive outcomes.
For the most part, these results were achieved through talking and negotiating
rather than slugging it out economically.
Over time
attitudinal changes crept in, certainly encouraged by “political
correctness”. One particular area involved was that relating to employee
dismissal. Whereas previously employee dismissal was pretty much based on the
“fair go” approach all that was to change with the new and “enlightened”
attitude. Essentially the new approach ran from the proposition that the
employee had an inalienable right to employment and consequently could do no
wrong. So far was this attitude taken that what could amount to an indictable
offence at law on the part of an employee, did not necessarily exclude what
became an “unfair dismissal” action.
Unfair dismissal
thus became a compensation matter by way of what amounted to “ex-gratia”
termination payments. Employers found themselves in the position of being
practicably unable to sack staff because of the hassle and the cost. They had
Buckley’s chance of winning a challenge, as the wisdom of previous
administrations was gradually lost. Employers could either settle an
“unjust” claim or go to legal costs that would quite probably exceed the
proposed claim settlement figure.
Now lets not get
this wrong. Not all the fault on all occasions fell with the employee as there
were some pretty rough stunts pulled on employees by employers. That is simply
undeniable. In the majority of dismissal cases however the old moral based
system applied. But by and large
the popular belief grew up in the community that small employers should be
relieved of the encumbrance of “unfair dismissal” laws and be able to
terminate an employee with reasonable notice on reasonable grounds without
defining a single or driving cause.
As many small
businesses develop from family enterprises, they were not overly skilled in the
matter of industrial relations law, at least by comparison with the Trade Unions
who had made a profession of industrial relations for more than a century.
Consequently some leeway to the employer was deemed to be reasonable for these
small business operators. But by this time small business had started to develop
its own defences. We got to the stage where most employment was “casual” or
for a fixed period of time, the so-called contract system of employment.
When Prime Minister
John Howard stated pre-election that these inequities should be corrected not
many people disagreed with him. The general consensus of what a small business
was, in the minds of a great number of people, was a business of say up to 20
employees. These, it was believed, should be eligible for relief. This was
considered about the level at which a business required the full time employment
of a dedicated “employment officer” or as probably would be styled today a
“human resource officer”.
On that basis
everyone was pretty laid back about the proposed Howard Industrial Relations Law
changes and so without question it became a positive for the Prime Minister at
the election. At that time Labor was struggling and scoring points off them was
not all that difficult. It was a dream run for Howard who otherwise was not
short of skeletons in the closet himself. The crowning glory for Prime Minister
Howard was when Mark Latham made a wrong turn in Tasmania and timber workers
there strongly supported Howard, a fatal blow to Latham. The Howard team, as is
now history, were returned to Government under improved circumstances and
everyone waited for the promised relief to small business.
Now everyone in
business knows that small business [the single operator tradesman is now
referred to as “micro business”] has different interests and needs to medium
sized business and big business. Big and medium sized businesses with their
established and often outsourced Human Resources Sections were competent to
handle the previously existing law and possibly even to overcome its inherent
difficulties. Their skills equalled those of the Unions and Governments.
However, what was to
come out of the Government Industrial Relations Laws when finally introduced was
something completely different. Instead of setting the size of the organisations
that could benefit from the legislation [i.e. about 20 employees] it came out as
100 employees. Furthermore, by a bit of skilful business management practice an
organisation that clearly had over the 100 employees could, one way or another,
engineer its restructuring to ensure that it consisted of a number of entities
all of which would employ below the threshold set in the new legislation.
There is little
doubt that the top end of town initiated this enhanced upper limit and the
Government was only too happy to accede. For all we know it could have been part
of the original plan. Maybe it was considered unwise to confide in the public.
Whether that is a correct assessment or not is unclear but John Howard is going
to have to live with it right through to and during the next election. No doubt
he will be relying again on his quite reasonably correct assertion that the
attention span of the electorate is about 14 days and by that time we will have
forgotten all about it. Perhaps that is his hope again.
But clearly the cat
was let out of the bag when Senator Nick Minchin [Lib S.A.], speaking to the H R
Nichols Society said that the Industrial Relations job was far from done and
that there were future plans to further erode the Industrial Relations balance
within this country. The details of that meeting have been well publicised in
the media. Since the meeting was taped, a record of the proceedings is now
publicly available, at least in part. What was also recorded was the statement
by the Senator that the Industrial Relations laws, even as they stood, were very
unpopular with the public.
Admittedly the Prime
Minister has rebuked Nick Minchin, but whether or not we like it we are all now
on notice that further and more draconian changes are planned and if you listen
to the Prime Minister’s comments they refer mainly to the period up to the
next election. Not beyond it as Nick Minchin was stating. A difference that
needs clarification.
Perhaps we could
accept all the assurances being given but so far during the Howard
administration years we have had a string of concerning events in which the
truth was an elusive concept. Even more concerning were the official
explanations that came with them.
To mention a few
there was the matter of the waterfront dispute, which had to be resolved, but
who played what part and when was always shrouded in constructed obscurity. Then
there was the “Children Overboard Affair” which by any standards, except
perhaps those set by George Bush, was simply an embarrassment to both the
Government and the Country.
Without trying to go
through the whole litany of similar incidents, such as intelligence issues, we
can come right up to the presently running fiasco the “Wheat for Guns” deals
as it has been so uncharitably described by the Shadow Minister for Foreign
Affairs. The real truth of these dealings is only now beginning to emerge and
politicians share dealings in AWB Limited are doing nothing to inspire public
confidence. The public perception
here is irrespective of the outcome of the Cole Inquiry. It goes to the level of
public confidence in the integrity, honesty and reliability of our Government.
Getting back to the
matter in hand and the Industrial Relations Laws future changes as spelt out by
Senator Nick Minchin and the rebuttal given by the Prime Minister just what
level of confidence can we have in the statements of the Government.
Very little it
seems.
A Freedom of
Information Application was recently made on a Federal Government Department
regarding the Industrial Relations proposals, seeking the full story regarding
its development and implementation. It would seem from the documentation that
was released to the applicant that all that has happened so far was planned well
in advance.
But the interesting
thing was that the final section of the critical document was dealing with, for
the want of a more accurate description, “Future Proposals and Actions”.
This section was completely blacked out and while it is reasonable for the
Government not to disclose its hand too early, it is not unreasonable to presume
that the “future” material that was blacked out was exactly what Senator
Nick Minchin was talking about to the H R Nichols Society.
Clearly now that the
cat is out of the bag it is a reasonable expectation that the Government will
fess-up and come clean with the details on future Industrial Relations proposals
and so avoid the embarrassment suffered with the Iraq wheat deals, the Iraq
intelligence (WMD’s), the children overboard and all the rest.
To date this has not
been done and realists will say that it is unlikely to happen.
So from this we can
be reasonably confident that despite what the Prime Minister has had to say on
the matter since coming back from India, what Senator Minchin was saying was the
truth and that is what will be the product of the next term of the Howard
Government, assuming of course they are re-elected.
So, from this point
on we can hardly claim that we weren’t on notice of the Industrial relations
changes as set out by Senator Minchin.
I expect however the
final decision is ours... and we will make that decision at the ballot box!
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