POLICY
relations system should be to facilitate the process by which employees and employers reach mutually advantageous agreements about the terms and conditions of employment,” Ergas says in The Australian. “Whether our IR system achieves that objective while minimising compliance costs, avoiding unnecessary constraints on employees and employers, and promoting the integrity and accountability of collective organisations, should therefore have been the focus of the Productivity Commission’s workplace relations inquiry. “But that is not what the commission’s 1000-page interim report does. Instead, starting from dubious premises, it reaches conclusions that are often inconsistent with the evidence it presents.” The business community was less forthright in its criticism, with many groups cautiously attempting to draw some favourable outcomes from the draft recommendations. Australian Chamber of Commerce and Industry (ACCI) CEO Kate Carnell, is disappointed the recommendations don’t properly address employers’ concerns on unfair dismissal laws, general protections and the anti-bullying jurisdiction, but notes the report’s importance in driving conversations towards a more flexible system. “The claim by some critics that there is no need for any review, let alone change, is absurdly complacent and will consign Australia to slowing productivity gains,” Carnell says. “The draft report sheds some light on the state of our workplace relations system, (however) it is very important that the final report includes recommendations that will create employment opportunities and the prosperity that comes through work.” the Priority areas for resource employers Comparing its findings and recommendations to the 480-page submission lodged by resource industry employer group AMMA, the Productivity Commission’s draft report could be described as ‘hit and miss’ on the resource industry’s priority issues.
It’s also littered with contradictory approaches to fundamental IR issues – perhaps a by-product of its ‘renovate, not rebuild’ approach to the system. One example is its treatment of industrial action. Noting employer evidence that both strikes and threatened strikes is an escalating problem, the commission recommends that unions can only strike once bargaining has commenced; that the capacity to terminate striking where it causes significant economic harm be strengthened; and penalties for unlawful industrial action increased. On the other hand, it questions whether industrial disputes are actually harmful to productivity and recommends relaxing a number of procedural requirements for unions to organise strike action, such as through the Protected Action Ballot Order (PABO) process.
Some argue Harris appears to have had a change of heart with his draft report describing the current system as needing a ‘repair job, not a replacement job’ There are, however, some favourable draft recommendations that reflect AMMA’s submission, it’s independently commissioned KPMG report and dialogue with the Productivity Commission staff prior to the release of the report. The first relates to bargaining for ‘greenfields’, or new project, agreements, which AMMA has long argued provides unions with a ‘veto power’ and is a significant driver of cost escalations and delays to new projects. The Productivity Commission recommends strong incentives for parties to reach an agreement within a three month period, and that good faith bargaining principles also apply. Further, the draft report recommends a five-year nominal expiry date for all agreements, and more significantly proposes a ‘life of construction’
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agreement where justified. Both options would provide greater industrial certainty during the construction phase of a project. Another area in which AMMA’s advocacy is reflected is in the acknowledgement that the structure and appointments process of the national workplace tribunal, the Fair Work Commission (FWC), requires immediate attention. It found a new ‘fit for purpose’ governance model could reduce inconsistencies in some of the FWC’s decisions, and recommends fewer members of the tribunal be drawn from the ranks of former officials of trade unions or employer groups. Scattered among the more significant ‘wins’ for resource employers are a number of other recommendations that reflect AMMA’s proposals including in adverse action claims, unfair dismissals, agreement approval processes and permitted content in agreements. Further engagement needed
Despite the general disappointment in the Productivity Commission’s lacklustre appetite for fundamental change, its recommendations were always intended to generate debate that would inform secondary submissions in September. Just as it was the most comprehensive submitting party in the initial round, AMMA on behalf of its resource industry members has relayed in detail its feedback and concerns regarding the draft recommendations. While the review looks unlikely to live up to its potential as a driver for fundamental workplace change, AMMA is nonetheless optimistic on securing favourable outcomes for resource employers in the medium term. For instance, the federal Opposition is indicating bipartisan support may be reached for addressing issues around greenfields agreement making for new projects, which is critical to fostering future investment and job creation in Australia. Longer term, there is a chance yet the Productivity Commission’s review may prove a small catalyst for deeper conversations to truly get Australia’s workplace relations system back on track. RP
RESOURCEPEOPLE | SPRING 2015 | www.amma.org.au