(1988) A Fair Deal at Work

Submission made to the NSW government in anticipation of funding cutbacks of programmes run by the Labor Council of NSW and in anticipation of significant legislative change in NSW in the field of industrial relations.

Foreword

This submission to the Green Paper on Industrial Relations in New South Wales comprehensively argues for a number of changes to the New South Wales industrial relations system.

A Fair Deal at Work is not a document of dreamy wishes or of impractical proposals. Rather, the Labor Council’s submission suggests that much can be done within to improve existing arrangements and ensure that changes are for the economic and social good. It follows that the Labor Council has no sympathy for the crude and anti-union agendas of the extremists on the far Right or the far Left of the industrial relations debate.

For the New South Wales government, it has a clear choice – to pursue sensible industrial relations reform within a co-operative climate or to engage in industrial warfare aimed at tearing down the system.

This submission is a blueprint for sensible reform which will improve the economic and industrial relations of this State.

John W. MacBean
Secretary
Labor Council of N.S.W.
1988

Chapter

Appendices

Introduction

Industrial relations will always be an area of controversy. When the ‘Green Paper on Industrial Relations in NSW’ is published it will be one of the many major reports commissioned by a New South Wales government this century on the workings, failings and requirements of the industrial relations system in this State.

Even though there have been so many major reviews ( as well as countless ad hoc reviews of parts of the system), it is also noteworthy that there has been no systematic review of the New South Wales system for nearly half a century.

For example, the Industrial Arbitration Act has been subject to numerous amendments and changes over the years and it may be time to review how useful it now is and what changes are needed. This is more than a technical problem. Any review of the principal industrial relations legislation in New South Wales requires consideration of numerous vexed questions. Answers to such questions, at least to some extent, depend on ideological, political, social and economic perspectives. But it is also the case that some answers are better than others, as this submission will show.

This submission will not only throw light on some of the areas of controversy: it will also advance proposals for reform of the New South Wales industrial relations system. Rather than being a narrow academic exercise, this submission will have one overriding objective – to advance proposals for a fair deal at work.

The Labor Council notes that the following terms of reference have been provided by the NSW Minister for Industrial Relations and Employment, Mr John Fahey, to Professor John Niland, who has been commissioned to write the Green Paper:

Green Paper On Industrial Relations In New South Wales

The future direction of industrial relations in New South Wales has been identified by the government as a key factor for economic growth and social progress. Increased productivity through greater industrial co-operation and flexibility at the workplace, and social gains through enhanced industrial harmony, are seen to be important goals. Against this background the Hon. John Fahey, Minister for Industrial Relations and Employment, has commissioned Professor John Niland of the University of New South Wales to prepare a Green Paper on Industrial Relations.

The Green Paper will provide an excellent opportunity to identify the options for change and to stimulate useful discussion on a range of issues. Professor Niland therefore is keen to secure comments and proposals from all interested individuals and organisations, not just on possible changes to the formal institutional framework, but also on other elements that affect the overall industrial relations climate in New South Wales.

The following list of areas for possible attention has been identified by the Minister and it illustrates, but does not limit, the range of matters relevant to industrial relations reform to be addressed in the Green Paper.

★ The role and structure of the Industrial Commission of New South Wales

★ The role and structure of the New South Wales Department of Industrial Relations and Employment

★ Industrial action, including bans and limitations

★ Freedom of association

★ The place and provision of industrial relations training

★ Occupational health and safety

★ Equal opportunity, discrimination and industrial relations

★ Industrial democracy.

The Labor Council submission will deal with all of the rubrics specified in those terms of reference, as well as other intimately related questions.  For example, the questions of labour market deregulation and industrial development will be critically discussed in this submission.  Indeed, it would be eccentric to leave out of a review of the industrial relations systems of New South Wales any consideration of such matters.

At the outset, it may be useful to touch on the points to be addressed in this submission.  The following is a checklist of issues canvassed in the Labor Council’s submission.

Precis of Some Issues Canvassed in the Labor Councils’ Submission

Industrial Tribunals

1. What objectives are to be served by tribunals?
2. Scope of coverage, including contractors.
3. Preferred structure.
4. Defence of conciliation committees.
5. Selection and training of members of tribunals.
6. Implications of the (Federal) Industrial Relations Bill.
7. Discussions of weaknesses and possible changes, including legislative changes.
8. Specialist tribunals.
9. Role of the Industrial Registrar.
10. Registration and de-registration of organisations.
11. Individual versus registered unions appearing before tribunals.
12. Industrial magistrates.

Union Organisation and Activities

1. Recognition of the need for proper financial accounting procedures.
2. Moore v. Doyle problems.
3. Election requirements for Secretary and main executive officers.
4. Amalgamations and union coverage.
5. ‘Oppressive, unreasonable or unjust’ provision concerning union rules and activities, akin to Federal legislation.
6. Demarcation disputes.

Wages Policy and Alternatives to Compulsory Arbitration

1. Role of industrial tribunals.
2. Importance and limitations of centralised system.
3. Recent Australian and NSW experiences.
4. Award restructuring.
5. Status and purpose of registered agreements.  To what extent can they be ‘collectively bargained’ outside of the centralised system?
6. How ‘flexible’ should industrial relations system be?  Greater flexibility (whatever that may mean) does not necessarily suggest support for opting out policies.
7. Critique of ‘New Right’ policies.

Freedom of Association and Preference Arrangements

1. Compulsory unionism and distinction between this and preference arrangements.
2. Conscientious objection.
3. Relevance of ILO and UN decisions.

Discrimination And Equal Employment Opportunity

1. Role of unions in battle against unfair discrimination.
2. Strengths and weaknesses of existing anti-discrimination legislation in NSW.
3. Proposals for change suggested by the Labor Council.
4. Maternity, adoption and family leave.
5. Migrant workers.
6. Affirmative action.
7. Age discrimination.
8. Role of the Department/industrial tribunals and other agencies.

Industrial Action

1. Weaknesses of ‘penalties’ approach to industrial relations.
2. Enforcement of orders by the tribunals.
3. ILO Conventions and Australian conventions concerning industrial behavior.
4. Dispute settlement procedures and ‘cooling off’ dispute settlement provisions.
5. Common law/tort action.
6. Sections 45D and 45E of the Trade Practices Act.
7. The Essential Services Act.
8. Critique of Liberal policies and discussion about areas for reform.

Role of Department of Industrial Relations And Employment

1. What should be the objectives of the Department?
2. Role of particular agencies, for example:
   • the Central Planning and Research Unit;the Work Advisory Unit;
   • the Industrial Inspectorate;
   • the Womens’ Directorate; and
   • the Occupational Health and Safety Inspectorate

1. Importance of training and development of officers in the Department.
2. Staff shortages and recruitment.
3. Relationship with other departments and agencies.
4. Public sector industrial relations: style and approach.

Occupational Health And Safety

1. Overview of developments in NSW.
2. Reasons why strict, sensible and enforceable regulations are important.
3. Relationship with rehabilitation policies.
4. Proposals for reform.

                            Industrial Democracy

1. Unions essential part of industrial democracy processes.
2. Role of job delegates.
3. Role of Government.
4. Encouraging initiatives in the private sector.

Industrial Relations and Trade Union Training

1. Role of TUTA – importance of recognising the value of trade union training.
2. Study leave facilitating restructuring in industry.

                               Industrial Development

1. Unions can be part of solution or part of the problem.
2. Analysis of industrial development policies.
3. Recent experience with award restructuring.

All of these points – and more – are discussed in the following pages.  In doing so, the Labor Council trusts that ultimately the New South Wales government will direct its attention to improving the industrial relations climate and to achieving a fair deal not only for the workers of this State, but also for the whole New South Wales community.  Nothing less than the economic progress of New South Wales requires such a strategy as set out herein.

Acknowledgements

The members of the Labor Council Industrial Relations Green Paper Sub-Committee worked tirelessly to produce this document.  Besides Labor Council representation, the following unions were represented: AMWU, FIA; FCU; WMISEU, PSA, SDA, MEU, AWU, NSW Teachers Federation, Health and Building Surveyors; ETU; BWIU, FMWU, TWU, NSW Nurses Association, Newcastle Trades Hall Council.

Particular thanks is due to those representatives who assisted in the drafting of sections of this document.

Also of great assistance to the Labor Council Committee were Mr J.W. Shaw of Queens Counsel and Associate Professor David Plowman, both of whom read sections of this document.  However for the errors and opinions which remain, the Labor Council is entirely responsible.

1.     Introduction

The industrial relations system in New South Wales is primarily regulated by the Industrial Arbitration Act 1940, which establishes a system for the prevention and settlement of industrial disputes within the State arena.  The main elements of the system include the Industrial Commission, conciliation commissioners, conciliation committees, the Industrial Registrar and industrial magistrates.

The Labor Council supports the centralised overview of conciliation and arbitration in relation to industrial matters which has emerged in the Federal and State arenas in recent years.  There are, in our submission, no substantial grounds for radically changing the fundamentals of the industrial relations system.

We note that the Committee of Review into Australian Industrial Law and Systems (the Hancock Report) comprehensively examined issues relating to the viability of a centralised system of industrial regulation at the Federal level and recommended the retention of such systems – notwithstanding the array of proposed reforms that were mooted.

We do not intend in this chapter, to stoke over such arguments – suffice to say firstly, that we support the continuation of a centralised system.  Secondly, that there is no incompatibility between a conciliation and arbitration system and good industrial practices; it simply has not been shown that the introduction of a substantially changed framework would markedly improve industrial relations practices.  The burden of proof that radical change would produce better management/labour relations rests with those seeking such change.  However, conjecture rather than proof has been offered to support such proposals.  (See the chapter on Labour Market Deregulation and Labour Market Flexibility).

2.    The Need For Reform

It is recognised that the New South Wales industrial system, through direct legislation and tribunal decisions, has historically often provided a lead to other Australian industrial systems in improving workers’ rights – notably the unfair contracts jurisdiction and the regulation the terms and conditions of engagement for quasi-employees and certain independent contractors.  In addition, the New South Wales system led with the introduction of the living wage concept, some years before the Federal system.  Decisions of the Industrial Commission of New South Wales historically have been the major vehicle for increased recreational leave entitlements and the reduction in hours in the ‘normal’ working week.  The Labor Council, is of the opinion that the Industrial Arbitration Act can effectively promote the regulation of industrial matters and, as a result, calls for reform in certain key areas.

The subject of this chapter is to consider the basic character of the industrial relations system which should exist in New South Wales.  Our argument proceeds on the basis of the retention of the basic centralised framework – albeit with some modifications and improvements.

The Labor Council believes that the interests of workers and of good industrial relations generally are best served by industrial legislation that:

• recognises the legitimacy and importance of the work of the unions in promoting the interest of their members;

• provides minimum standards of wages, conditions and employment protection for workers (including the regulation of the terms and conditions of those workers who, as a matter of law, are engaged in some legal relationship other than employment, e.g. sub-contract workers in the housing industry); and

• promotes meaningful discussions and consultation between employers, unions and workers, and gives opportunities to employees to be able to influence decisions that affect their working lives.

It should be pointed out, moreover, that if the parties to industrial relations wish to rely more heavily upon direct negotiations (whether or not they are aided by industrial tribunals), they are free to do so, i.e. the system of industrial regulation is, to a degree, adaptable and can accommodate practices which differ from those now obtaining.

3.    The Institutional Framework

Both the Commonwealth and most States have created systems of conciliation and arbitration.  Although these mechanisms differ in detail, they share fundamental characteristics.  We note, also, that given the sharing of responsibilities between Federal and State governments (and the legal nexus that is thus engendered) it would be difficult, indeed immoderate and injudicious, for one State to unilaterally initiate drastic change which would weaken the compulsory conciliation and arbitration system.

Four important characteristics of these conciliation and arbitration systems may be noted.  First, the centralised system assigns important roles to representative groups of employers and employees.  In doing so, there is encouragement of the development of registered unions.  Secondly, tribunals offer the services of conciliation to disputants.  The Acts under which they operate generally accord a priority to voluntary settlement of disputes and, hence, to conciliation over arbitration.  Thirdly, the legislation provides for arbitration when voluntary settlement of disputes is not achieved.  Lastly, the force of law is lent to the terms of employment.

Various aspects of the operations of the system and the institutional framework are examined throughout this chapter.  The Labor Council will outline which aspects we believe should flourish within this overall system and, in the course of doing so, to evaluate proposals for change with a view to improving industrial relations performance.

4.    A More Integrated Approach

The Labor Council supports the development of a more integrated industrial relations system at the Federal and New South Wales levels.  Such development will only be achieved over time and with the co-operation of governments, industrial tribunals, unions and employers.

The present State/Federal arrangements have, to some extent, had an adverse effect on the operation of the overall system, entailing unnecessary complexity and legalism.  In contrast, there is advantage in having arrangements for greater flexibility and for accommodating co-ordination between the States.

While it is by no means certain that co-operation will solve all of Australia’s industrial relations problems, it displays the promise of coming closer to that goal.  In this respect, it is important to note that complementary systems proposals include the use of joint Federal/State tribunals conferences as a procedure to secure consistency between State and Federal awards.

The framework for the development of a more integrated system under new legislation should include action to complement the Federal Industrial Relations Bill 1988.  If the procedures advocated in that Bill are followed through at the State level, one of the main objections raised to the dual system should be removed, i.e. the possibility (more apparent than real) of unions and employers exploiting the choice of jurisdictions available for the settlement of their industrial disputes.

It would, in addition, go a long way towards improving the appreciation of workers about their awards, by reducing the discrepancies (that is, differences) among State and Federal awards which operate in the same industry or workplace and minimize the potential for different mechanisms, principles, timings and so forth to operate across Federal and State awards.

Properly handled, the evolution of joint sittings and the like should have significant beneficial effects on the shape and direction of industrial relations in this State.  But while there are undoubted benefits associated with greater co-operation and integration, any legislation must ensure the continued and viable operation of State unions and State registered employer groups, while at the same time retaining the positive aspects of the State system – with its knowledge of local conditions, jurisdictional independence and a wider jurisdiction than the Federal system.  These points about the merits of the New South Wales system were emphasized in the Labor Council’s submission to the Hancock Inquiry.  The points made then continue to be valid.  The Labor Council’s submission appears as an Appendix to this submission.

5.     The Industrial Arbitration Act and Regulations

As a first step in reviewing industrial relations in New South Wales, consideration must be given to the Industrial Arbitration Act itself – one of the most frequently amended pieces of legislation in this State.  The Act is replete with outmoded and excessively legalistic forms, procedures and regulations, as is the Trade Union Act 1881.

Simplicity and clarity should be the litmus test of the drafting of new legislation and regulations.  Many of the present complications are unnecessary.  Accordingly, there should be a complete modernization of the Act, regulations and procedures for the purpose of:

• remedying deficiencies;

• streamlining the Act and simplifying its language;

• improving the administration of the legislation;

• simplifying and clarifying the respective rights and obligations of the various parties to proceedings;

• clarifying the relation between the Industrial Commission and other tribunals (such as in the anti-discrimination areas);

• encouraging relative informality and expedition in dispute prevention and settlement;

• giving far greater emphasis in favour of the processes of conciliation, rather than arbitration as the usual means of dispute resolution; and

• recognising the important role unions play in the centralised system of conciliation and arbitration.

5.1    Industrial Matters

Unlike Federal system, there are no impediments posed by the Constitution on the meaning of ‘industrial matters’.  Thus, the Labor Council submits that the Act should be amended to put beyond question the widest possible power to deal with all manner of ‘industrial matters’ arising between employers and workers.

5.2    Special Jurisdiction

We vehemently reject the proposition advanced in some quarters to reduce or abolish the powers of State industrial tribunals concerning firstly, certain classifications of workers and, secondly the power to intervene in contractual and other relationships involving work in an industry.  It should be emphasized that although the Labor Council supports sensible integration between the Federal and State systems, integration does not imply complete uniformity.

The State systems have always had a wider coverage than the Federal system in potential and fact by virtue of common rules and the enactment of special legislation.  The principal sections of the Act in the latter respect are as follows:

• section 88E and other sections of the Industrial Arbitration Act ‘deem’ persons engaged in certain work to be ‘employees’ for the purposes of the Act and other employment-related State statutes.  The object of these ‘deeming’ provisions is to prevent the evasion of the minimum industrial standards prescribed by Parliament and industrial tribunals;

• section 88F provides extensive powers for the alteration or setting aside of contracts or arrangements or the award of damages whereby a person performs work in an industry where the contract or arrangement is unfair, harsh or unconscionable, against the public interest or designed to avoid the provisions of a State award or industrial agreement.  The section is designed, firstly, to protect persons from unfair and harsh dealings, and secondly, to protect established industrial standards;

• section 88FA provides that application can be made for an order, subject to satisfying strict criteria, setting minimum rates if it is established the work is, or is likely to be, carried out under a contract which is unfair, harsh or unconscionable, or against the public interest.  The section is designed to facilitate the provision of minimum standards in certain contract situations involving building work, door-to-door sales or handbill delivery work;

In the building industry, in particular, it is widely recognised that s.88FA is in the interest of stability in the industry and provides protection for all – employers and workers – concerned.  We note that the insertion of s.88FA in the Act was supported, not only by unions, but by most major employers groups in the industry.

• Part VIIIA of the Act, in broad general terms, allows the Industrial Commission to regulate the pay and conditions of persons engaged in certain kinds of contracts in the transport industry.

The need for the scope of special jurisdiction outlined above is particularly evident when one recognises that there is growing tendency in some industries to engage independent contractors or self-employed persons to perform work which might otherwise be performed by employees – with the clear intent of avoiding standard industrial conditions of employment.

Moreover, many workers who are afforded protection under these sections of the Act are union members and it is appropriate that their interests be represented through established industrial machinery.

5.3    Reinstatement

Even where the power of dismissal has been unfairly exercised, it is clear that reinstatement is not always the most appropriate remedy for industrial tribunals to use (see for example, McKeon J. in Western Suburbs District Ambulance Committee v. Tipping (1957) AR 273 at pp.279-280 and Sheldon J. in Loty and Holloway (1971) 71 AR 95 at p.99).

In the latter case, it was stated that reinstatement should result in “a fair go all round”.  Plainly, this is not always that case, for example, there may be situations where the employment relationship has deteriorated to such an extent that, realistically speaking, reinstatement would be futile.  The Labor Council clearly supports reinstatement as the remedy to be applied in most instances.  However, if the remedy of reinstatement is not suitable in particular circumstances, industrial tribunals should be clearly empowered to award substantial compensatory payment as they deem fit and proper in the circumstances.  Moreover, it is inequitable that under the present arrangements compensation for lost earnings following an unfair dismissal may not be awarded.

There is a very real need to remedy the apparent jurisdictional shortcoming in respect to the power to award compensatory payment under the Industrial Arbitration Act.  The legislation should clearly empower State industrial tribunals to have the discretion to award generous compensatory payment in lieu of, or in addition to, the current rights of reinstatement.  (See also the chapter Equal Employment Opportunity, Discrimination and Industrial Relations).

5.4    Discrimination in Employment

The Labor Council considers employment-related discrimination as an industrial matter.  As such, it should be dealt with in the mainstream industrial system under the auspices of a revised Industrial Arbitration Act.  Moreover, the Act should be amended such that industrial tribunals be required to take account of principles embodied in anti-discrimination principles.  (See also the chapter in this submission on Equal Employment Opportunity, Discrimination and Industrial Relations).

5.5    Hours of Work

The Labor Council notes that a large proportion of the workforce work 38 hours per week or less, while other sections still have standard hours of 40 per week.  In order to partially-rectify this inequitable situation, s.63 of the Act should be amended to provide for standard working hours of a maximum 38 per week for full time employees.

Moreover, there is no apparent reason why matters relating to hours should be restricted to the Industrial Commission in Court Session – particularly in view of the negotiations pursuant to recent National and State Wage Case decisions.

The Labor Council submits that the Act should be amended such that other the industrial tribunals within the State jurisdiction are given power to deal with matters relating to standard hours.

5.6    Maternity Leave

The current legislative provisions under the Act place onerous obligations on women workers – particularly in respect to notice requirements.  Accordingly, we submit that the maternity leave provisions in the Act should be amended in line with the recommendations of the Labor Council Working Womens’ Charter Committee (see Appendix 1).  The Labor Council also argues that paternity leave rights should be recognised in the Act.

5.7    Adoption Leave

The Labor Council is concerned that there is no legislative entitlement at the State level for taking adoption leave.  There should be a legislative provision to include adoption leave as per the ACTU adoption leave case – including the non-discriminatory provision of such rights for males as well as females.

5.8    Right of Entry/Inspection of Records

Pursuant to s.129A of the Act, entry and inspection permits may be issued to duly accredited union officers.  The purpose of the permits is to enable the official to interview employees, investigate any suspected breach of statutory or award entitlements and inspect time and pay sheets.

The words ‘suspected breach’ in s.129A(1)(c) have in the past created difficulties for some permit holders (see, for example, The Storemen and Packers Case (1951) AR 527 and Master Ladies Hairdressers Association of New South Wales v. Hairdressers and Wigmakers Employees Union (1976) AR 588.  In the latter case, Sheehy J. took the view (at p.592) that an employer was ‘entitled to resist any unauthorized intrusion into his premises or unauthorized demands and can therefore … require some prima facie evidence that the right of the union official is being exercised properly’.  The union official should, on this analysis, reveal the nature of the suspected breach.

We note that it may well be impossible for the permit holder to specify the precise nature of the suspected breach sufficient to satisfy such an interpretation.  Moreover, in small establishments where few employees are employed, an explanation of the nature of the suspected breach would serve to identify the complainant employee, possibly leading to harassment by the employer.

Accordingly, we submit that the rights of entry of union officials holding entry permits should be strengthened concerning suspected breaches of employee entitlements and should be extended to include suspected breaches of occupational health and safety requirements.  Moreover, the term ‘officer’ in the section is too narrowly defined.

There should be amendment to ensure that employees of unions and job delegates have rights of inspection.  In order to better facilitate the observance and enforcement of statutory and award entitlements, s.127(2A) should be amended to allow the secretary of a union to require employers in distant and remote locations to forward to the union wage and time records by post in the event of a suspected breach.

5.9    Union Rights and Union Rules

It has been held that there is no appeal from the decision of the Industrial Registrar in matters relating to the alteration or amendment of union rules (see Re: Australian Workers’ Union, NSW Branch 7 IR 158).  This arose because of the absence of express provision in either the Act or Regulations providing for such appeal rights in relation to the registration of union (s.8 and reg.16).

There is no valid reason why there should not be an appeals procedure from the Registrar in such matters.  An appeals procedure from the Registrar would prevent undue referral of matters to the Commission in first instance on the basis that the question of an appeal might subsequently arise.

Matters such as these, should, by and large, be dealt with by the Registrar, in the first instance, unless the parties consider the matter raises questions which should be dealt with by the Commission.  Accordingly, s.8 should be amended to cover alteration and/or amendment of union rules and reg.16 should be amended to reflect appeals procedures in reg.12.

5.10  Gazettal of Awards

The gazettal of awards and their availability for purchase is still significantly delayed after their finalization by industrial tribunals.  The delay, in part, can be attributed to the abolition of the requirement for the parties to file a final document reflecting the decision of the tribunal on an award matter.  (See also the chapter to this submission on The Role of the Department, Including Public Sector Employment Matters.  That chapter discusses a number of ways that the provision of accurate award information, including the use of the latest technologies, can be improved).

This results in the settlement section being required to draft documents based on transcript, exhibits etc., with the obvious delays and problems that involves.  Consideration should be given to requiring the parties to file relevant documentation within 21 days of a decision in the matter (or of any speaking to the minutes that might be held before the tribunal to finalise such a document).

6.    Industrial Tribunals

In the New South Wales system, conciliation and arbitration of industrial matters should not be conducted in an atmosphere infused with complex legality.

The Labor Council believes that industrial matters should (wherever possible) be dealt with primarily on the basis that they are industrial relations – not legal – matters.

In considering the question of legalism, it is necessary to distinguish between those constraints which are inherent in conciliation and arbitration and those which are not.  Naturally, some procedural requirements must be observed to ensure that the arguments of the parties are properly considered and that this is seen to occur.  However, we do not think that in their procedures, the industrial tribunals require a greater degree of ‘legalism’ than is consistent with this basic requirement.

There is a need for reform to reflect such a requirement.  But in reforming the system, recognition of the contributions made by the existing system must be borne in mind.  That being said, it is essential, in our submission, that any legislative change ensures that industrial issues do not become unnecessarily inter-woven with legal questions – which are not basically central to the day-to-day practice of industrial relations.

In particular, the Labor Council rejects the proposition that an Industrial Division of the Supreme Court should be established to take over the judicial functions of the Industrial Commission, determining matters of law and fact covering industrial law or that matters arising from proceedings pursuant to s.88F of the Act should be heard in the Equity Division of the Supreme Court.

No real or practical purpose is to be served by incorporating the Industrial Commission of New South Wales into the larger structure of the Supreme Court.  The Industrial Commission is already a superior court of record with wide powers to ensure that its decisions are observed.  To integrate that court into the structure of the Supreme Court would facilitate and encourage appeals on questions of law (and perhaps even fact) to the Court of Appeal and, thence, by way of special leave, to the High Court.  The encouragement of litigation in the superior courts arising from the resolution of industrial disputes is to be deprecated as rendering the processes of resolving industrial disputes much more lengthy and costly.

For many decades, the Industrial Commission has been able to conduct its affairs in a responsible and respected way without any undue intervention by the superior courts.  We would doubt that the proposal to integrate the Industrial Commission into the Supreme Court finds any substantial support amongst practitioners before the Industrial Commission or the major parties which regularly deal with industrial matters before that tribunal.

In order to streamline operations and to ensure consistency, we submit that the Chief Industrial Magistrate should be brought more directly into the system.  Relatively recent amendments to the Industrial Arbitration Act aimed to reduce legalism in recovery and enforcement proceedings before industrial magistrates.  However, the present system is still cumbersome and inordinately slow.

It has been the complaint of numerous unions that the pervading legalism involved in proceedings before industrial magistrates is so sometimes so strict that the law, rather than upholding industrial justice, obstructs it – and therefore defeats its own purpose.

We submit that the existing legal procedures should be fully examined with a view to implementing changes to enable industrial magistrates’ proceedings to be conducted with a minimum of formality, delay and legalism.

6.1    Reform of the Existing System

The undermining of the processes of conciliation is, in part, evidenced by the current structural (indeed physical) division between conciliation commissioners and members of the Industrial Commission.  We welcome recent changes designed to facilitate greater interaction and reduce the distinction between legally qualified members of industrial tribunals and non-lawyers.  Federally, such a process has occurred to the point where there the delineation of functions has been minimized.  This has also occurred in the South Australian system.

Greater integration between the conciliation commissioners and members of the Industrial Commission voids the idea that there are two distinct and separate groups of tribunal members in the New South Wales industrial system – the commissioners and the judges – and is welcome in that respect.

6.1.1   Conciliation Committees

In New South Wales, there exists a system in the ‘conciliation committees’ which have an equal representation from unions and employers.  Conciliation committees are usually concerned with the formal processes of award making and award variation (as distinct from settling industrial disputes) and they can and have been successfully used to improve industrial relations>

To the extent of equal representation from opposing sides, conciliation committees recognize the adversary system applying in all Australian industrial tribunals.  On the other hand, they represent a pragmatic process which is far less formal than strict adversarial contests.

Conciliation committees have often resulted in a remarkable degree of industrial co-operation and conciliated awards.  In many cases, the matters at issue are resolved on a simple majority vote.  While disagreements may continue, the parties are better able to understand the other side’s point of view and often act swiftly and co-jointly to prevent a single issue becoming a major grievance.

Yet there is a renewal of attack from some quarters on this pragmatic system primarily because it involves ‘interested parties’ in the decision-making processes.  In this respect, the Labor Council is specifically opposed to the views of those who argue for the abolition of the conciliation committee system.  We acknowledge that some conciliation committees have not met for several years and are largely defunct.  However, in our submission, a large number of conciliation committees are operating successfully and there is no real or practical purpose is to be served by their abolition.  Quite the contrary, to do so would deny an efficient and effective method for handling industrial matters.

We note and endorse, in this respect, the comments of Mr. Justice Sheehy in dismissing an application that the Industrial Commission should assume jurisdiction of a conciliation committee in a State award matter:

The purpose of having a committee or panel of persons experienced in the industry or acquainted with it is to make conciliation attainable and to facilitate arbitration where it become necessary.  The practice has arisen for members to be nominated by the industrial unions of employers and employees engaged in the industry concerned.  This suits the convenience of all and I think it is a practical and desirable method of proceeding, although from the point of view of pure judicial theory, it may be preferable, in the interests of impartiality, to allow nominations only of persons not directly associated with the nominating body.  However, I do not think that anyone whose notions of justice are fashioned in the arena of industrial conflict could be shocked or affronted by the present practice.

Re Transport Industry (State) Award 72 AR 319 at 326.

The purpose of having a committee or panel of persons experienced in the industry or acquainted with it is to make conciliation attainable and to facilitate arbitration where it becomes necessary.  Where there is a successfully operating system – and many conciliation committees are examples of good industrial relations, it is against the public interest to abolish such mechanisms.  One cannot legislate industrial peace: it is achieved through winning the confidence of the parties – and many conciliation committees are an acknowledgement of the fact.

6.1.2  Specialist Tribunals

There are a number of specialist tribunals within the New South Wales system.  The New South Wales government has announced a policy favoring the abolition of the Coal Industry Tribunal, in particular, because they view it as a ‘destabilizing anachronism’.  This view is not shared by the Australian Collieries’ Staff Association which submitted to the Labor Council, as outlined below, arguments in favour of the existing system:

As well as the Coal Industry Tribunal, the system currently includes three Local Coal Authorities (North, West and South) which have made, and are making, an invaluable contribution to the functioning of the industry.  The Local Coal Authorities are at the forefront of conciliation and arbitration in that they are able to act quickly on a local basis through the very experienced and able Chairman holding office.  Most disputes are settled quickly, allowing production to continue or resume.  The Coal Industry Tribunal itself has also fulfilled its charter ably.  We cannot deny that industry disputes are very high in the coal mining industry compared to the rest of industry or that wages have at some times been higher than those outside the industry.  The causes of these situations are not however in the Tribunal itself, but in more complex factors.  Without going into too much detail, we would suggest that the following factors are more relevant:

• the long and bitter history of industrial relations in the industry;

• the innate conservatism of many in the industry;

• the dirty and dangerous conditions under which much production takes place;

• the incidence of work-related injury and disease;

• the inability of many proprietors to engage in meaningful discussions and negotiations; and

• the special conditions in the coal mining industry recognised by international conventions ratified by Australia under the ILO.

If, however, it is decided to proceed with the dismantling of the present system then there are ramifications and alternative arrangements which must be considered.

The role of the Joint Coal Board must be addressed and it’s inter-relationship with the Coal Industry Tribunal.  The many vital functions the Joint Coal Board performs are predicated on inter-governmental co-operation, and its ability to refer matters to the Coal Industry Tribunal is an important part of its method of functioning.

If the experience and expertise of the present incumbents of the Coal Industrial Tribunal and Local Coal Authorities are not to be lost, then it would be logical to integrate the Tribunal and its Chairman into the existing industrial structure by making him a Deputy President of the Federal Commission, with appeals to lie against his decisions as detailed below.

If it is decided, despite the very strong arguments to the contrary, that there should be a significant restructuring of the system of regulation of industrial relations in the coal mining industry, then a logical and consistent system needs to be devised which will retain as many of the advantages of the present system as possible.  A re-organisation along the following lines would be the best possible replacement:

• that the Chairman of the Coal Industry Tribunal be a Deputy President of the Conciliation and Arbitration Commission;

• that Mr David Duncan be appointed as a Deputy President of the Arbitration Commission;

• that, at least as an interim measure, Mr Duncan continue as Chairman of the Coal Industry Tribunal;

• that appeals against certain decisions of the Chairman could be made to a Full Bench, as presently provided for in s.35 of the Conciliation and Arbitration Act;

• that separate staff (including Secretary), facilities, etc., be maintained and funded through the Joint Coal Board (as presently) in order to maintain the special expertise available;

• that Local Coal Authorities be replaced by Conciliation Committees with the present Chairman having a similar role as Commissioners as specified for Conciliation Committees under the Flight Crew Officers Industrial Tribunal Part IIIA of the Conciliation and Arbitration Act;

• Consideration would need to be given to the industrial relations needs of the Colliery Officials Association of New South Wales (Deputies).  There are 1,100 deputies who have statutory responsibilities and they must have some place in any altered scheme.  The Australian Collieries Staff Association intends to continue discussions with that organisation over matters of mutual interest.

In the event that the state and Federal governments agree to abolish the Coal Industry Tribunal and restructure industrial relations in the industry, the processes of such change should include substantial consultation with ourselves and other unions.  In this period of serious industrial turmoil, it would be indeed unfortunate to throw further fuel on an already fiercely burning fire.

6.2    Structural Change

In 6.1, above, the Labor Council argued for a greater emphasis on the processes of conciliating disputes, strongly supporting the conciliation committee system – primarily based upon the ground that, where possible, industrial matters should be handled in an atmosphere relatively free of legal technicalities.

Also, as has been pointed out earlier, the Labor Council is specifically opposed to the argument that an Industrial Division of the Supreme Court should be established to take over the judicial functions of the Industrial Commission or that s.88F matters should be heard in the Equity Division of the Supreme Court.

To fragment the centralised industrial system by handing over certain functions to the Supreme Court would clearly undermine the functions of the Commission.  However, in so far as a more radical structural change from that currently obtaining is seen as desirable, we would make the following submission, namely that two tribunals be established: the Industrial Court of New South Wales and the Conciliation Commission of New South Wales.

• The Industrial Court would consist of judges having the status of Supreme Court Judges, to be headed by a Chief Judge, equivalent to the President of the Court Appeal.

The Court would have both original and appellate jurisdiction, and would deal with questions of law and enforcement.  The original jurisdiction would include:

• jurisdiction under the principal Act and related industrial legislation such as the Occupational Health and Safety Act;

• rules disputes and election inquiries pertaining to unions;

• the interpretation and enforcement of statutory and award entitlements made by the Conciliation Commission;

• the determination of jurisdictional and legal questions referred to the Court by the Conciliation Commission.  The decision to refer or not to refer such a question of law should be a matter of discretion for the commissioner;

• the conduct of judicial inquiries; and

• section 88F matters.

The appellate jurisdiction would primarily cover appeals against decisions and convictions of industrial magistrates arising out of breaches of various industrial statutes and awards.

• The Conciliation Commission would be structured similarly to the existing Industrial Commission, with a president, deputy presidents and the retention of conciliation commissioners and conciliation committees.

This Commission would primarily deal with matters of industrial relations, including:

• the setting of general wages and conditions and related principles;

• mediation in industrial disagreements, disputes and potential disputes;

• the settlement of disputes concerning industrial matters;

• unfair dismissals; and

• the promotion of good industrial relations, through conciliation committees and where the parties so desire, the establishment of industry councils.

The submission for two tribunals, as outlined above, would be designed to facilitate less legalism in dealing with industrial matters.  In addition, it is consistent with the aim of emphasizing the role of industrial tribunals in all matters relating to industrial relations, rather than the undesirable course of fragmenting functions to other jurisdictions.

6.3    Industry Councils

We submit that, where the parties so desire, statutory-based industry councils should be established in addition to conciliation committees.  These bodies would have the responsibility for promoting better industrial relations in those industries they cover.  They should be comprised of equal numbers of union and employer representatives, and should be chaired by members of the Commission, to be known as ‘conciliators’.

These councils would provide a forum for discussions about industrial problems.  It is envisaged that by bringing the parties together with a conciliator as chairperson – in an atmosphere not directly related to an industrial dispute – overall industrial relations would be improved in given industries.  In particular, industry councils would work:

• to reduce industrial disputation;

• to improve management-union relations (especially in the area of consultation relating to technological change); and

• to promote a co-operative approach for the prevention and solution of problems within particular industries.

7.     Union Organisation and Activities

Industrial unionism and the concept of collective responsibility inherent therein – coupled with the promotion of individual and collective rights – is fundamental to the practice, procedure and principles of industrial law in New South Wales and in Australia as a whole.

There is a growing interest – from governments, unions and employers – in the development of more flexible arrangements for consultation, the provision of information and worker participation in discussions about the decisions which affect the work situation.  As such concerns are becoming more prominent in the agenda of industrial relations, the system should be capable of handling them.

7.1    The Role of Unions

Australia has ratified ILO Conventions No.87 and No.98, dealing with Freedom of Association and the Right to Organise (see Appendix 2).  Essentially, these Conventions acknowledge the right of employers and workers to form associations of their own choosing and for those associations having the right to organise other members.

Any reform to the system of law and practice applying to industrial associations should be consistent with the obligations voluntarily accepted by Australia under those Conventions.

Implicit in the Industrial Arbitration Act and associated legislation is the objective of encouraging union membership, the organisation of representative bodies of employers and employees and their registration under the Act.  Registered organisations may, among other things, institute proceedings before the Industrial Commission and obtain and enforce awards.

As such, they are accorded a central place in the operation of the conciliation and arbitration system.  Worker and employer unions represent an indispensable part of the centralised system of industrial relations.  The structured system of dispute resolution developed under both State and Federal laws embodies the concept of recognition by registration.  The effect of registration is that unions are entitled to certain benefits and are subject to corresponding obligations.  This provides an orderly system of representation and enables tribunals to make orders binding on the relevant parties and enables a centralised overview of industrial system.  It is clear that to allow individuals access to tribunals would undermine the operation of the system.  Accordingly, proposals to allow such rights are to be deprecated.

However, there is scope for a variety of legislative reforms which can enhance the system’s performance in this regard – without destroying its basic character.

7.2    Industrial Democracy

Democracy in the workplace is a fundamental democratic right and should be incorporated in legislation and awards.  Areas which require legislative attention include:

• in the area of prescriptive legislation, there should be far greater protection of the rights and freedoms of job delegates and union organisation – especially at the workplace level (see below);

• in framework legislation, there should be a requirement for employers to provide information on request from unions; a requirement to negotiate on issues requested by unions, e.g. technological change, sub-contracting, management, re-organisations, etc.

In our submission, the Industrial Arbitration Act and associated industrial legislation should provide for the principles set out above (see also the chapter in this submission discussing Industrial Democracy and the Revitalization of New South Wales Industry).

7.3    Union Elections

The union movement is committed to the promotion of democracy within unions and recognises the importance of a legislative framework to ensure that such aims are conducted in accordance with union rules and good faith.  Axiomatic to that view is the principle that office bearers in unions should be elected by members – subject to the recognition that there should be appropriate flexibility for union members to determine the electoral provisions that best suit the needs of their union.

The Labor Council considers that unions should be able to determine whether to conduct elections by postal vote or by alternative methods maximizing participation.  This will allow union members, through the rules of their union, to determine the best method of voting to adopt in order to maximize the levels of participation and to ensure secrecy of the ballot.  Postal ballots should be conducted through the State Electoral Office, free of charge.

The Labor Council also supports the principle of having a fixed term of office in union rules.  Consideration should be given to allowing union rules to provide a maximum period of four or five years in each sequential period of office.

7.4    Union Rules

Consideration should be given, in consultation with the union movement, to a legislative provision paralleling Federal law that there be a general requirement that the rules of unions are not to impose oppressive, unreasonable or unjust conditions upon members or applicants for membership, having regard to the objects of the Act and the purposes of registration.

7.5    Financial Accounting

The Labor Council recognises that unions bear the responsibility for adopting proper accounting and audit procedures in respect of their financial affairs.  In any reform relating to financial accounting, the Labor Council believes the following matters should be taken into account:

• any revision should be undertaken in full consultation with the union movement;

• any legislation should recognise the special characteristics and needs of unions and should not merely be based upon accounting requirements applicable to other organisations such as companies; and

• there should be due recognition of the accounting issues which may arise in Moore v. Doyle situations.

Any proposed legislation should not over-regulate the preparation, presentation and audit of union accounts so as to place unreasonably onerous obligations upon unions.  Rather, a reasonable legislative scheme should provide the basic framework for proper accounting and audit procedures in unions.  In this respect, we note that many unions in New South Wales currently file detailed financial accounts pursuant to the Federal Act.  We submit that in order to achieve streamlining and consistency, it should be sufficient for such unions (also affected by State laws) to lodge the relevant certified information, subject only to minor administrative and documentary changes necessary for State requirements (e.g. a certified copy of audited accounts, together with a statement detailing such other information as the Industrial Registrar might require).

For example, where a State union is closely interrelated with a Federally-registered organisation, the latter’s accounting and audit obligations are regulated by the Conciliation and Arbitration Act.  Often, the same firm of accountants acts for both the State and Federally-registered body.  Presently, many such State unions submit their returns based on Federal requirements.  It is clear that inconsistency in governing accounts and audit procedures under State legislation would result in duplication of work and unnecessary expense for such unions – a certain result if corporate-style legislation is introduced.

As to financial accounts and their availability to members and their presentation at meetings, we note that the common practice is for unions to publish such information or summaries of the same in the union journal, which is available to members free of charge.

The Labor Council submits that there is a clear case to draw a distinction between the legal regulation of unions and the legal regulation of companies.  In respect to accounting procedures, Anne L.N. Riches points out in ‘Union Accounts – A Three Ringed Circus’ (1984) 58 ALJ 96, that regard has to be given to the fact that the Conciliation and Arbitration Act is concerned not only with the administration of unions, but also the running of the Federal arbitration system.  The objects of the Act therefore differ from the objects of companies’ legislation.  We reject the proposition that the laws governing financial accounting should parallel corporate legislation.

The following is an extract from Labor Council policy:

Council notes the institution in 1985 by the New South Wales Minister for Industrial Relations of a review of the financial accounting provisions of the Trade Union Act and the Industrial Arbitration Act.  Council welcomes this review as a means of updating the antiquated standards and 19th century terminology of the current legislation.

Trade unions, which are democratic structures, have no objection to guaranteeing the rights of members to be informed of their Union’s financial position.  Council also recognises that it is a well known tactic of anti-union forces to accuse unions generally of being financially inept and/or dishonest; this is despite the fact that Australian unions have been largely free of the type of financial scandal that has regularly rocked, and continues to occur in the private business sector.

It is also noted that the extremely onerous and detailed accounting provisions introduced into the Conciliation and Arbitration Act by the Fraser government have not revealed any significant examples of financial wrong-doing by Federal unions or their officials; the only real result of those amendments has been to increase greatly the financial and administrative burden upon unions required to comply with them and a consequent lessening of the unions’ ability to serve their members.

For those reasons, Labor Council believes that any revision of union accounting standards in New South Wales must not result in an “accountants’ dream”, but, instead, should aim at:

• ensuring that members can be apprised of their union’s financial position;

• modernizing the statutory provisions;

• bearing in mind the small size of many State unions, keeping the cost of compliance within reasonable limits; and

• maintaining the principle of ensuring the independence from outside interference of trade unions.

7.6    Demarcation Disputes

The Labor Council recognises the need for improved measures to deal with demarcation disputes.  These measures should stress the need for such disputes to be settled within the union movement and, only when settlement cannot be effected in this way within a reasonable period of time, for there to be recourse to industrial tribunals.  (See also Amalgamations, below).

The Labor Council notes that the Industrial Relations Bill gives some recognition to the role of unions in so far as it provides that the Industrial Relations Commission may seek the ‘advice’ of peak councils (union or employer) as to the timing and exercise of any powers concerning demarcations.  In our view, this does not go far enough, i.e. it does not adequately recognise the solution of such disputes within the union movement.  Though the use of well-established disputes settlement procedures, with the assistance of peak councils, such disputes have often been successfully and speedily resolved.

We consider that the following proposals represent the most appropriate and effective way of improving the current machinery.  Firstly, consultative arrangements between unions and employers should be developed in order to reduce the incidence of demarcation disputes.  In particular, there should be consultation prior to the introduction of new work or new work arrangements.  Prior consultation in such circumstances may considerably assist in the prevention and early resolution of the problems associated with such disruption.  Ideally, legislation should be introduced to require employers to consult with unions in the circumstances envisaged.

Secondly, the role of the Labor Council should be strengthened in the Act:

• to require reference of significant demarcation disputes to the Labor Council before recourse to the Industrial Commission; and

• to provide for proceedings relating to a demarcation disputes in the Industrial Commission to commence, where a matter has been referred to the Labor Council, with a report by the Labor Council on the outcome of the efforts to settle the dispute within the union movement.

7.7    Amalgamations

Where amalgamations of unions are stultified by restrictive legislation, the consequences are, sometimes, demarcation disputes and lack of unity in the bargaining process – the latter both weakening the union position and complicating the reaching of reasonable agreements with employers.  With respect to amalgamations between unions, no barriers, save those concerning the need for democratic decision-making processes by the membership, should exist.  We note and endorse the following comments from the ACTU document Future Strategies for the Trade Union Movement:

If Australian unions are to develop and implement a strategy for the future it is of the utmost importance they consolidate their organizational base.  This means that it is necessary: (i) to rationalize the structure of the movement; (ii) to make a sustained effort to improve and to maintain channels of communication between unions and their members; (iii) to develop and implement effective recruiting campaigns, and (iv) to provide a high level of service to union members, both industrially and in a broader social context.  (at p. 7).

We also note that the document outlines draft programmes for amalgamations, drawn up with the objective of establishing larger unions on a conglomerate or industry basis.  The Industrial Relations Bill 1988 proposes changes to Federal law designed to facilitate greater ease of amalgamations for Federally-registered unions and we submit, consideration should be given to amendments along the broad lines the Bill proposes.  The Labor Council of New South Wales will play a major role in encouraging a rationalization of the union movement’s structure.  The Labor Council recognises that it is largely up to the union movement to reform itself and this is now largely occurring both to the benefit of members and to accommodate labour market needs.

7.8    Moore v. Doyle

In 1969, the Commonwealth Industrial Court, in the judgment of Moore V Doyle (1969) 15 FLR 59, determined that trade unions registered under New South Wales industrial laws were separate legal entities and thus distinct from a related organisation or branch of an organisation registered pursuant to the provisions of the Conciliation and Arbitration Act.

That notion causes difficulties for registered unions of employees and employers.  When the Federal and State affairs of such bodies are intermingled, legal challenges are possible to the validity of many actions taken by the registered trade union, to the validity of the election of its officers and to the validity of the possession of membership by individuals or companies.  Plainly, such legal challenges are wasteful of the resources of registered unions and may be disruptive of good industrial relations.  Debates about such matters are largely sterile and disadvantageous to the members of the union concerned.  Such problems were recognised by the Court in 1969 when it said (at p.123):

… when factional differences arise in trade unions, or when it suits the interest of some litigant or litigants to do so, the Federal or State body can be attacked and its valid operation, its entitlement to assets, funds and membership, imperilled.  Furthermore, the validity of membership in one body or the other may be difficult to establish in cases in which membership has to be proved as a condition of exercising jurisdiction or to qualify or enable a person to be or to be made a party in legal proceedings.  The system as required to exist by State and Federal legislation and as it has evolved under that legislation in practice is technical, productive of artificialities and in urgent need of the attention of the law reformer.

Certain reforms have been enacted in New South Wales legislation: in particular, the validating provisions inserted in the Industrial Arbitration Act offer some measure of protection for registered unions.  These provisions are to be found in Part XI A of the present statute, commencing with section 117A.  Although not, so far, widely used, these provisions should be maintained in any review of the Act.  They are consistent with the notion of a strong and soundly-based separate State system of industrial arbitration (with its associated system of registration of industrial unions of employees and employers) and the provisions are protective of that system, with their effect of seeking to minimize litigation on the technical points referred to above.

There is a case for the strengthening of these provisions and for the further protection of organisations from legal attack of this kind.  We refer to a useful precedent to be found in the relevant South Australian legislation, the Industrial Conciliation and Arbitration Act 1972 (SA) and in particular to s.133 of that statute.  It provides:

1)    The legal existence or registration of an Association, the membership of any member or any person claiming to be a member of an Association, the validity of the appointment or election of any officer of an Association or of any action or decision of such an officer, or the validity of any resolution passed or decision made at any meeting of an Association or of any committee of the Association, cannot be challenged, impugned or in any way affected, nor can the compliance of any rule or rules of an Association with the prescribed conditions, or the observance or validity of any such rule or rules or the operation of any such award or order made under this Act, be challenged, impugned or in any way affected by reason only that –

• the Association is also registered as an organisation pursuant to the Commonwealth Act, or is a Branch or forms parts of an organisation so registered;

• members of the Association are also members of an organisation registered under the Commonwealth Act, and no register of members separate and distinct from the register kept by the organisation registered under the Commonwealth Act is kept by the Association, or no application for membership fee separate from the application or fee made and paid to the organisation registered under that Commonwealth Act has been made or paid to the Association by any member;

• the Association keeps and maintains no or insufficient books, accounts, records or rules which are separate and distinct from any books, accounts, records or rules kept and maintained by an organisation registered under the Commonwealth Act, of which some or all of its members are members;

• officers of the Association have been elected or appointed by or are also officers of an organisation registered under the Commonwealth Act; or

• any matter consequential upon or arising out of the matters referred to in paragraphs (a) to (d).

2)  This section operates both retrospectively and prospectively.

We would suggest that some further paragraphs could be added to such a statutory provision which would strengthen it and give it greater efficacy.  We suggest the following to be added to subsection 1):

• the affairs of the Association have been administered in any or all respects conjoining with the affairs of an organisation registered under the Commonwealth Act or any part thereof;

• no separate elections have been held for officers of the Association, provided that the officers of the Association have been elected to and hold equivalent offices in an organisation registered pursuant to the Commonwealth Act or any part thereof;

• then insert the present (e).

It is obvious that changes of terminology would be necessary to this provision in order for it to fit comfortably within the New South Wales legislative framework, including in particular an alteration from the reference to ‘the Association’ to a reference to any ‘industrial union of employees or employers’.

In 1985, the Parliament took steps to protect the certificate of registration of an industrial union, by inserting Section 10A(3) of the Industrial Arbitration Act.  This protective provision arguably has some gaps and should be strengthened, to make it clear that (apart from the cancellation of the registration of an industrial union in de-registration proceedings pursuant to s.8(8)) the possession of a certificate of registration should be conclusive evidence and render the registered union immune from all legal challenge and, secondly, so as to refer to the registration of the trade union pursuant to the Trade Union Act as well as the certificate of registration issued under the Industrial Arbitration Act.  We suggest the following enhancement of the present protection:

10A(3):  Except in proceedings instituted, heard and determined under section 8(8) independent of any other proceedings, a certificate issued pursuant to section 10A(1) under the hand of the Registrar stating that an industrial union is registered as such, that certificate shall be conclusive evidence that all conditions and preliminary steps precedent to that registration have been complied with and performed, that the industrial union is a duly registered union and the said certificate of registration shall not be challenged, called into question or otherwise impugned in any court or tribunal.

10A(4):  The said certificate of registration of an industrial union issued pursuant to subsection (1) of this section shall also be deemed to be conclusive evidence that all conditions and preliminary steps precedent to the registration of the industrial union as a trade union under the provisions of the Trade Union Act 1881 have been complied with and performed and that the industrial union is in fact a trade union registered under the Trade Union Act 1881, and any such certificate of registration shall not be challenged, called into question or otherwise impugned in any court or tribunal.

These suggestions for legislative change are not by any means intended as final drafts, which obviously need to be perfected by the parliamentary draftsman and given further thought, but are intended to illustrate the concept of protection against destructive legal challenge which this submission opposes.

8.    Job Delegates

The Labor Council believes that the role and work of job delegates and union officials should be accorded recognition in the form of legally-enforceable rights.

In brief, the Industrial Arbitration Act should be amended:

• to increase penalties under s.95;

• to provide for a ‘cooling-off’ period before dismissal of job delegates;

• to ensure adequate provision is made for job delegates to carry out the functions of collecting dues, counselling members, distributing union materials and enrolling new members; and

• to provide, where practicable, that persons elected to full-time union positions may take up such office on leave without pay and have the right to return to their former position at the same staff level from which they left it.

The industrial arbitration system is one based upon the existence of unions of employers and employees.  The restrictions upon the access of individuals to the system are an acknowledgement of this legislative framework.  It is, therefore, essential that unions participate and participate effectively in the system.  (See also the chapter in this submission concerning Industrial Democracy and the Revitalization of New South Wales Industry).

8.1    The Role of Job Delegates

Job delegates are an integral part of this framework and there are compelling industrial reasons for providing special legal protection for such individuals.  Although not union officials per se, delegates, by virtue of their representative role and activities, assume a status different from that of the ordinary union members.

In the absence of a delegate or in the absence of a delegate who has the time and proper facilities to perform his or her duties, communications between the union and members can break down, leading to poorer industrial relations and even an alienation of members from the union and ultimately, from the industrial system itself.

8.2   Facilitation of Job Delegates’ Work

ILO Convention 143 recommends the making of certain provisions to ensure the ability of job delegates to carry out their duties in an effective manner (see Appendix 2).

This Convention could be implemented in the New South Wales context by the inclusion of provisions designed to ensure that the employer should allow a delegate such time during working hours, without loss of pay, as is reasonable and necessary to enable the delegate to:

• collect from employees of the employer, union subscriptions, fees and levies;

• meet with employees who are members of the union on an individual basis, to discuss matters related to the union or to the member’s welfare;

• distribute to employees who are members of the union publications issued by the union;

• meet and enrol into the union persons who have commenced employment with the employer and who are or who would be upon commencement of employment be eligible to join the union represented by the delegate;

• attend as a witness, etc., before industrial tribunals; and

• attend meetings held by the union during working hours relating to industrial matters.

In addition to these matters, delegates should have legally recognised rights of inspection and access at work to ensure members’ rights are being observed (see 5.8, above).  This should be complemented by the provision of such facilities as a notice board for posting union materials and, where practicable, by the provision of or access to a properly equipped office for the purpose of interviewing members, etc.

8.3   Protection Against Victimization

Actions by employers which discourage workers from nominating for delegate positions should be legislatively prohibited and, where appropriate, remedied: notably, the threat of dismissal must not be allowed to discourage union members from assuming delegates’ duties.  This argument proceeds on the recognition that:

• job delegates assume a higher profile than other union members, thus increasing the chances of being singled out for discriminatory treatment in the nature of victimization; and

• the nature of a job delegate’s union responsibilities (including the necessity to move about the workplace, attend at meetings and tribunal proceedings) may increase an employer’s opportunity to fabricate a reason for dismissal under the guise of poor work performance.

Certain defects are apparent in the current legislative protection afforded to union delegates under s.95 of the Industrial Arbitration Act.  In particular, the section does not distinguish between ordinary union members and those who have assumed the additional responsibilities as job delegates.  Moreover, the section does not accord with the standards set down by the ILO in Convention 135 and Recommendation 143 (see Appendix 2) concerning protection and facilities to be afforded to workers’ representatives in respect to their activities.

Consistent with the ILO Conventions, a statutory ‘cooling-off’ period of at least seven days should be introduced before any proposed dismissal of a job delegate.  There should also be requirement that the employer provide to the employee under notice of dismissal:

• a statement of reasons for the dismissal;

• a statement of all award, over-award, superannuation and other entitlements due to the employee as at the proposed date of dismissal; and

• a statement of employment, including the date of commencement, all positions held, current award classification and weekly rates of pay.

The notice period should only start to run from the date upon which the delegate is given reasons for his or her dismissal.  In addition, the Industrial Commission should be empowered to insert into awards a grievance procedure to be followed in this period.

8.4   Post-dismissal Procedures

The requirement that the leave of the Industrial Commission is required before proceedings can be instituted should be examined with a view to reform.  While it may be justifiable to keep a check on hopeless cases, the ‘by leave’ provision, when combined with the onus of proof in such matters, may encourage employers to take a chance on dismissing a job delegate.

It is considered that the narrowness of sections 95(1)(b), (b1), (b2), (c) and (d) encourages undue technicality.  It would be preferable to see the inclusion of a more generalised provision.

We submit that it would also be preferable to see a provision providing for an automatic reversal of the onus of proof in the case of a dismissal following reinstatement.

9.    Preference to Unionists

Section 129B of the Industrial Arbitration Act presently provides that State awards and industrial agreements may be varied to provide for absolute preference in employment to be given to members of a union specified in that award or industrial agreement, i.e. members of specified unions have preference over non-unionists or members of some other union.

There are a number of restrictions on the operation of s.129B, notably that preference is limited to the pointed where a member of a union and a person who is not such a member are, at the same time, offering for service or employment, or being retrenched.  It does not apply to other areas of employment, such as promotions or transfers.  In addition, in the Preference of Employment Case (1977) AR 458, the Industrial Commission referred to an implied limitation of competency for the applicant, commenting (at p.473) that ‘it is implicit in an award provision for the giving of absolute preference of employment within the meaning of s.129B that the preference is service of employment.  The standard of suitability and competence is that which the employer sets reasonably and in good faith..’.  Put another way, the union member will only be given preference ‘all other things being equal’.

The organisation of workers into unions is the most fundamental prerequisite to the achievement of industrial justice – particularly in a centralised system of conciliation and arbitration such as operates in New South Wales.  Given, also, that union-won gains flow to all workers, it is equitable to insist that union membership be encouraged.  Following from this proposition, it is clear that there should be an extension of the preference provisions of the Industrial Arbitration Act, to allow the awarding of preference for unionists in all matters relating to employment.

Moreover, the existence of preference of employment in State awards and industrial agreements establishes the appropriate union to represent workers in a particular industry or occupation, thereby assisting in preventing and/or resolving demarcation disputes (See also the chapter in this submission discussing Freedom of Association and Preference Arrangements).

Conscientious Objection

Unqualified rights of objection to union membership are inconsistent with the legislative aim of encouraging the formation of unions and of fostering union membership: it would undermine the structure of the established system which depends upon the existence of representative bodies.  The Labor Council endorses the present requirement that the Industrial Registrar must be satisfied that:

• the applicant is genuine and honestly holds the view he or she claims;

• the beliefs held are, in fact, part of a conscientious belief and not just casual intellectual persuasions;

• the conscientious belief goes to industrial unionism and not just to a particular union or group of unions; and

• a payment equal to union dues is made to the Industrial Registrar.

However, there are concerns about the lack of union involvement in the procedure for issuing certificates of exemption to conscientious objectors.  Unions, as interested parties, should have a heightened role, through legislative amendment, concerning rights of notification, representation in proceedings and appeal.  (See also the chapter in this submission discussing Freedom of Association and Preference Arrangements).

10.  Public Sector Industrial Relations

Full access to industrial tribunals is enjoyed by most public sector employees throughout Australia.  However, workers employed by the Crown under the Public Sector Management Act (1988) and the predecessor, the Public Service Act (1979), are denied full and open access to industrial tribunals – by virtue of statutory provisions and frequent jurisdictional challenges – contrary to ILO Conventions (see Appendix 2).

In 1974, the Report on Access to New South Wales Industrial Tribunals by Public Servants, Teachers in Government Schools and Police (the Beattie Report) comprehensively examined the question of access to independent arbitration.  While recommending that such access be made available to address the injustice faced by such employees, the Report also noted the sound public utility of the recommendation:

…It is in the public interest that Industrial Arbitration Act should provide for the preventing and settling of industrial disputes which may arise between the Board and persons employed under the Public Service Act, because stoppages of work by government employees can have serious consequences for the community, ranging from the breakdown of law and order to inconveniences flowing from interruptions to government services. (at p. 45).

Notwithstanding the legislative changes that were introduced and designed to facilitate access to State industrial tribunals, there have been numerous examples where jurisdictional challenges have been mounted (e.g., in the last few years in the Government Employees (Redundancy)Award application, the Crown Employees (Motor Vehicle Allowances) Award application and the Department of Tourism Case), or where amending legislation has been introduced to restrict access (e.g. the short-lived Teaching Services Amendment Bill 1988).

It is clear that government employees, no less than any other worker in this State, should have the right to participate fully in the centralised system of conciliation and arbitration as the need arises – without the spectre of challenges based on legal technicalities.  The Labor Council submits that the Industrial Arbitration Act should be amended to ensure the right of full and open access to industrial tribunals for all government employees.  The following summarises areas in need of specific attention in current Act.

Jurisdiction of Industrial Tribunals

It is submitted that s.20(1B), concerning restrictions on the jurisdiction of industrial tribunals with respect to officers and employees of the Crown, should be deleted.  In proposing this, three points are noted.

First, consistent with the aim of full access, the deletion of the section was argued for by public sector unions in submissions to the Beattie Report.  However, no recommendation emerged on such submissions, as the question of its operation was specifically found to be outside the inquiry’s terms of reference (Beattie Report at p. 75).

Second, industrial disputes sometimes arise concerning the appointment of officers under the terms of certain awards or agreements where the position in question is defined by reference to certain qualifications, and the Department deems other qualifications to be equivalent.  Similarly, disputes have arisen where job descriptions and/or specifications have been altered with, unions have argued, the patent intention of favoring a particular applicant for the position.  Plainly, the merits of such industrial disputes should be subject to independent arbitration, and should not be stymied by the operation of s.20(1B)(a).

Third, it is equally difficult to comprehend the rationale as to why the withholding of an increment should be statute-barred from independent arbitration by virtue of s.20(1B)(b).  The possibility of a person being unfairly dealt with in this regard, without avenues of recourse, is such as not to warrant further comment.

Legal Representation

Unless consent is obtained, representation by a legally qualified person such as a barrister or solicitor is generally prohibited before State industrial tribunals.  As a matter of practice, appearances by persons holding legal qualifications are quite common.  However, it is not unusual for one party to successfully object to such appearances, as of right.

It is anomalous that, by virtue of s.80(3), the Crown may choose to be represented by a legally qualified person and that no objection can be taken – whereas, if the Crown chooses to be represented by an unqualified person, objection can be made to the union being so represented.

It is clear, in point of principle, the Crown should be subject to the same provisions relating to legal representation operating generally.  Accordingly, it is submitted that s.80(3) should be deleted.  (See also the chapter concerning the Role of the Department, including Public Sector Employment Matters.)

11.   Other Legislation

Long Service Leave

The Labor Council welcomed amendments to the Long Service Leave Act by the New South Wales government in the Long Service Leave (Amendment) Act 1985.  These amendments increased the period of long service leave by the number of public holidays which fall within that period and, for the first time in mainland Australia, gave casual workers the right to long service leave.

The Labor Council believes that there are still some areas for improvement in long service leave standards and that there continue to be anomalies which should be removed.  Therefore, we submit that the following anomalies in the Act should be removed:

• the existing limitation on non-adult service should be repealed;

• portability of long service leave should be introduced, in order to allow all workers with less than the minimum service (especially casual workers) to accrue a leave entitlement; and

• legislation should ensure that all workers who have worked the appropriate number of years receive long service entitlements, regardless of bankruptcy in any industry.

The Labor Council also calls upon the government to improve long service leave benefits in the following manner:

1. the qualifying period for a worker’s entitlement to 13 weeks long service leave should be reduced from 15 years to 10 years;

• pro-rata benefits in lieu of long service leave should be unconditionally available after five years; and

• payment for long service leave should include a loading similar to that applying to annual leave.

Annual Leave

The Labor Council submits there should be amendments to the Annual Holidays Act 1944 in the following manner:

• extend the time period for taking leave from 6 months to 12 months;

• grant to employees the right to take leave at a time of his or her choosing, subject to:

• the giving of adequate notice,

• the existence of annual shut-downs,

• provision for the resolution of disputes between employers and employees concerning the dates of taking of leave;

• abolition of the right to automatic accumulation of payment in lieu of leave, (as currently provided by s.4 of the Act) and the substitution therefore of a system of a reference to the Registrar of employee requests for substitution of payment in lieu for the actual taking of leave as it falls due;

• increase the penalties under the Act, to discourage a repetition of the Fletchers Fotographics case.

The implementation of such amendments will, we submit, rationalise the practical operation of the Act.  In addition, they will remedy the most notable deficiencies and anomalies currently operating.

1.     What the Debate is About

It is an irony that for most of the 1970’s and earlier, the most vocal and strident critics of a centralised and regulated wages system were located well to the Left of the industrial relations mainstream.  Such critics alleged that the centralised conciliation and arbitration system acted against the interests of unions when seeking to extract the best possible deal from employers.  The arguments ran that unions should always be able to collectively bargain with employers and engage in industrial action to achieve a particular industrial aim.  By placing obstacles to this behaviour, including legal sanctions, the State, through the conciliation and arbitration system, was illegitimately curbing the scope of union strategies.  Usually married to such arguments was the view or suspicion that this was deliberately aimed at stunting working class consciousness – and that this outcome was not a good thing.

In the late 1980’s, such views are hardly listened to at ACTU Congresses and other union forums; and when such arguments are put forward, they are regarded as the eccentric views of minority Leftist sects.

But on the other side of the industrial relations and political spectrum, much has happened over the last decade.  Within some employer bodies, arbitration is in contempt.  A small number of organisations and critics associated with the New Right have lampooned the ‘industrial relations club’ as a conspiracy against the public to cause high labour costs, inflexible labour markets and unacceptable levels of industrial disputation.  Hence, the catchcry and argument in favour of deregulating the labour market.

To contrast the changes in attitude within the union movement and on the employer side with respect to the conciliation and arbitration system in this way is, perhaps, a little misleading.  Historically, the industrial relations and regulation processes within Australia and in New South Wales have always generated controversy.  Indeed, the current ‘Green Paper’ process is only one of the many reviews and Royal Commissions which have examined the strengths and weaknesses of the New South Wales industrial system.  A reading of history also shows that almost all unions have not been consistent about the preferred industrial relations framework.  In addition, over time, there has been a good deal of criticism, particularly amongst academic economists, concerning the utility and workings of the Australian processes of conciliation and arbitration of which the New South Wales system is a part.

It would be a mistake to think that the issues are merely a contest between a ‘purist’ system of conciliation and arbitration (for example, as outlined in H.B. Higgins’ A New Province of Law and Order) and the kinds of views favouring a free market which are much beloved by the devotees of Adam Smith.

Nonetheless, different approaches to the regulation of the labour market have emerged in recent years, particularly between the major political parties.  This means that any examination of the New South Wales industrial relations system needs to contemplate the arguments about rigidity, flexibility and opting-out in the context of the existing system of compulsory conciliation and arbitration.

This chapter will argue that it would be folly to lurch towards a system of deregulated collective bargaining and that it would be unsound to radically experiment with industrial relations practices outside of (and in conflict with) the jurisdiction of the Industrial Commission of New South Wales.  In advancing such arguments, this does not mean that the Labor Council is uncritically in favour of the existing system.  Even if the Labor Council were to advance such an argument, it would be incoherent.  This is because the existing system is alive and changing, subject to new precedents and affected by the arguments of the parties and societal changes.

Ultimately, the major questions to be considered are:

• What would be the practical consequences of changes to the existing New South Wales system of industrial regulation, such that ‘opting-out’ and deregulation might imply?

• Would such deregulation be able to co-exist alongside the centralised and regulated system of conciliation and arbitration as has emerged in New South Wales and in Australia in recent years?  If not, what are the consequences?

• Is labour market flexibility and localised negotiation compatible with the Federal and State conciliation and arbitration systems?

2.    Historical Remarks

Henry Bournes Higgins’ lofty sentiments, expressed in the Harvard Law Review of 1915, have often been quoted and compared with current situations:

…the processes of conciliation, with arbitration in the background, is substituted for the rude and barbarous processes of the strike and the lockout.  Reason is to displace force; the might of the State is to enforce peace between industrial combatants as well as between other combatants; and all in the interests of the public.

Such were the contours of the new province of law and order described by Mr. Justice Higgins.  Nowadays, his words are usually quoted in order to score a ridiculous comparison: modern day affairs compared to the expectations of this founding father of the Australian Constitution.

Usually overlooked in the passage quoted above are the words “with arbitration in the background”.  It is here that a clue to the development of conciliation and arbitration in Australia, at the expense of collective bargaining, may be found.

As a result of the protracted shearers’, maritime and other strikes of the 1890’s which, amongst other things, put up to public debate the right of workers to organise – and collectively bargain with their employers – and the defeats suffered by the labour movement at that time, many unionists and colonial politicians began to think seriously of alternatives to the harsh methods of resolving industrial conflict – where victory could be secured according to force and not necessarily by justice.

At first, conciliation and arbitration were proposed, not as alternatives to collective bargaining, but as ancillaries.  Indeed, in the original objects of the Conciliation and Arbitration Act was the requirement to encourage and assist collective bargaining processes.  K.F. Walker has commented in Australian Industrial Relations Systems that “the founders of arbitration systems…based their hopes on legitimising collective bargaining which was, however, to be regulated so as to protect the public interest” (at p.435).  (It might be noted that the ‘community interest’ is a concept notoriously difficult concept to define and usually invoked at a time of competing interests.)  Continuing strong opposition from employers meant that:

Attempts at voluntary arbitration proved abortive because the employers, being in a strong position, refused to submit to it while the experiment in New Zealand with compulsory conciliation and arbitration beginning in 1894 appeared to be succeeding.  (See Merrifield, L.S. Wage Determination Under Compulsory Arbitration at p. 158.)

Compulsory conciliation and arbitration was legislatively introduced in Western Australia in 1990, New South Wales in 1901 and federally in 1904.  Emphasis was placed on collective negotiation and, if that broke down, on conciliation – the attempt by a neutral to arrange for disputants to conciliate their differences – rather than immediately relying on arbitration.

An exhaustive survey of the developments in the New South Wales and Australian conciliation and arbitration systems is clearly beyond the scope of this paper.  However, it is important to note that these systems each involve elements of collective negotiation and voluntary/compulsory conciliation and arbitration.  Further, the method of dealing with industrial conflict varies from industry to industry.

Differences also apply between the states: some states, such as New South Wales, have developed a system of compulsory conciliation and arbitration similar to the Federal system, whereas other States have experimented with Wages Boards.  (Although it might be noted that, in the last five years, Tasmania and Victoria have discarded Wages Boards systems in favour of State Industrial Commissions similar, in many respects, to the New South Wales system.)

The industrial character of work performed or required of an employee was, for many years, interpreted by the High Court to mean that classes of workers such as professional engineers, airline pilots, journalists and actors could be parties to the creation of an industrial dispute within the meaning of the Federal Act, but that workers such as fire-fighters, nurses, lawyers and doctors were not within such a class.

This interpretation was overthrown in the Community Youth Support Scheme (CYSS) case in 1983 (R. v Cohen and Ors; ex parte Australian Social Welfare Union (47 ALR 225), a decision which will have widespread industrial implications – not the least of which is ‘opening the door’ to many New South Wales unions, previously confined to the State system, to seek Federal award coverage.  This is relevant to any consideration of radical changes to allow ‘opting-out’ from the compulsory conciliation and arbitration processes.  Experimentation along those lines in New South Wales may well encourage many unions to abandon the State system by securing Federal award coverage for employees presently within the New South Wales jurisdiction.  In so doing, the jurisdiction of Federal awards would override State legislation or arrangements allowing deregulated individual work contracts.

In brief, the New South Wales and Australian systems of conciliation and arbitration are compulsory in these respects: either party – the union or employer – may notify the existence of an industrial dispute and the parties can be compelled to meet in conference (that is, compulsory conciliation).  If conciliation is not achieved, the matter may be referred to arbitration, where a settlement may be imposed on the parties, enforceable by law.  Unlike voluntary arbitration, where the parties choose an arbitrator, in the centralised system an arbitrator is assigned to handle disputes arising in a particular industry or industries.

Kenneth Walker has commented on this process with respect to award creation as follows:

…what looks like a slow, cumbersome legal procedure from the outside is actually a mixture of negotiation and arbitration hearings and the speed at which the whole process moves is largely in the hands of the parties.  Since awards and agreements continue in force indefinitely, and tribunals are usually anxious for the parties to agree on as many points as possible, so long as both parties are willing to negotiate, there is no pressure for the case to be [immediately] settled (op. cit. at pp. 89-90).

As already pointed out, it is important to note that industrial relations patterns between different industries are vital considerations for an analysis of conciliation and arbitration in Australia.  Walker sets down the following rubrics which enable distinctions to be made between industries:

 a)   effectiveness of direct action;

• extent to which unions attempt to penetrate managerial functions;

• stability of organisation among employers and employees;

• nature of work and circumstances of employment;

• economic horizon of employees;

• methods of management;

• common social and industrial background and interests of employers and employees;

• personalities of union leaders, management and employers’ association staff;

• ideological and political objectives. (op. cit. at p. 391)

This is not a complete list.  Other factors include:

• government framework (such as the Accord);

• employment and unemployment levels;

• economic conditions;

• whether industry is in competition or protected;

• multi- or single employer bargaining;

• the influence of the ACTU and peak councils (including the Labor Council of New South Wales); and

• overseas influences.

Walker concludes that “a complete knowledge of the market conditions and technology of an industry would permit a fairly clear delineation of its industrial relations pattern” (op. cit. at p. 397).  This, in turn, explains the varying patterns of preventing and resolving disputes in various industries.

3.    Collective Bargaining and Compulsory Conciliation and Arbitration in Australia: What’s the Difference?

In academic circles, Professor John Niland’s critique of Australian conciliation and arbitration processes and his advocacy of collective bargaining has attained wide influence.  So much so, that it has been said by industrial relations academic Clifford Donn that “those advocating substantial change in the system have won the day, at least in terms of the intellectual debate, and that it is now time to consider a major overhaul of Australian industrial relations institutions” (Journal of Industrial Relations 1976, at p. 326).  As Niland has discussed the strengths and weaknesses of collective bargaining and compulsory conciliation and arbitration in works such as Collective Bargaining and Compulsory Arbitration in Australia, this section shall refer to his analysis for the purpose of discussing some important features of the Australian and New South Wales industrial relations systems.  It may be useful to note that the debate has had two rounds: Isaac, Laffer, Hancock and Foenander in the late 1950’s and 1960’s.  In his review of the debate at that time, David Plowman comments that the “debate had exhausted itself, with the participants concluding that no one system had any greater superiority than the other”.  (See Plowman, David, ‘The Hancock Inquiry: Models and Strategies for Change’ at p. 8; see also, Hancock, K.J., ‘Compulsory Arbitration Versus Collective Bargaining:  Three Recent Assessments’, Journal of Industrial Relations, Vol. 4, No. 1, 1962 at pp. 20-31).

Niland argues, that for the purposes of analysis, Australia can be said to face four broad possible policy options:

• to permit, through benign neglect, the drift towards dispute resolution outside the tribunal system;

• to enforce a return to compulsory conciliation and arbitration simpliciter;

• to enforce a shift to conventional collective bargaining;

• to structure a system of dual procedures, involving compulsory arbitration on the one hand, and collective bargaining on the other.

Niland discounts the merits of options (2) and (3) because there are many who prefer and presently enjoy a more flexible disputes settling and prevention procedure – and it would be unrealistic for those parties to forgo what is familiar and useful for a new system.  The drift towards collective bargaining outside of the conciliation and arbitration system, which Niland considers both desirable and inevitable, leads to consideration of options (1) and (4).  Niland proposes that option (1) should be discarded in favour of option (4), because of the unstable conditions arising from industrial tribunals resisting the collective bargaining tide (which is what Niland presumes would occur if option (1) were followed).  In Niland’s view, option (4) would require new and substantial modifications to existing industrial legislation.

This is not the place for an exhaustive discussion of Niland’s views.  However, it might be mentioned, in passing, that a fifth option could have been put forward, namely:

• within a centralised framework, the fostering of industry and workplace bargaining together with the recourse to compulsory conciliation and arbitration.

Such a system is the one which appears to be emerging, particularly in the aftermath of the March 1987 National Wage Case decision.

What follows are some comments about the kinds of ideas advanced by advocates of a breakaway from the so-called rigid conciliation and arbitration system.  Advocates of such proposals are open to criticism on the following grounds:

• It is necessary not to over-simplify matters and, for example, define collective bargaining as ‘heaven and earth’ and, on the other hand, infer that conciliation and arbitration is ‘purgatory and hell’.  The debate should be about what kinds of regulatory processes are appropriate and, in an economic context, that wage and labour flexibility outcomes are desirable.  In addition, it should be noted that questions about regulation are partly about degrees of regulation.  The term ‘centralised’ is a relative rather than a normative term.  Some systems are more centralised than others, and the content of such systems varies.  Collective bargaining is a term which might be applied to the highly-centralised and regulated system that operates in West Germany, or to the decentralised voluntary work contract arrangements that apply to much of the United States.  In other words, there are many different systems of collective bargaining.  Moreover, it would be a mistake to infer that collective bargaining processes are ‘rule free’: each country has developed its own forms of regulating collective negotiation between employers and employees.

• In view of the variety of industrial relations procedures existing between industries, it is not very meaningful to discuss Australian industrial relations procedures at the broadest level, as is found in some analyses.  Moreover, the finding, based on survey research, that most unions prefer more direct negotiations to compulsory conciliation and arbitration is hardly surprising: it is consistent with current behaviour and the workings of compulsory conciliation and arbitration, and is hardly ‘evidence’ supporting new collective bargaining procedures.  Further, even though it is true that there is considerable interest amongst many employers and unions concerning collective negotiations, it does not follow that the establishment of a dual system, featuring opting-out arrangements, is either workable or desirable.

• It is necessary to adequately consider some important defences of the conciliation and arbitration system as against the collective bargaining.  It is not enough to trot out the familiar arguments concerning the ‘chilling effect’ of arbitration for the negotiating process – and favourably contrast this with the need for responsible action and a constructive relationship between the parties to collective bargaining.  This is a most uncritical account of the differences between the two arrangements.  It is significant that the United States literature which spawned the ‘chilling’ and ‘narcotic’ effect has been silent in this area during the recent period of rapid and increased use of arbitration in the United States.  Recourse to arbitration on ‘rights’ and ‘issues’ matters in the United States suggests convergence between collective bargaining and arbitration arrangements.  In the United States, this is partly related to the need (in view of the recession in the early 1980’s and America’s economic problems) to minimise industrial disputation and increase economic competitiveness.

In any event, mutual tolerance and understanding is not always as readily apparent as collective bargaining advocates sometimes suggest; moreover, it does not always follow that more-realistic initial claims are made in collective bargaining compared to conciliation and arbitration.  Dr. Isaac, a former Deputy President of the Australian Conciliation and Arbitration Commission, has commented about the argument:

…that collective bargaining provides a basis for the union to be desirably more conscious of the cost of its claims and to be prepared to trade off one claim against another, whereas the log of claims in compulsory arbitration ‘is approached in a cargo cult fashion’.  Those who have been intimately involved with Australian arbitration will deny the general validity of this contention.  Whatever unions say in public, when they sit down in conference, their sensitivity to cost considerations and trade off possibilities is rarely in doubt to the employer who can smell ‘ambit’ positions from afar.  Nor are arbitrators deluded by ambit claims.  (Journal of Industrial Relations, 1979 at p. 471.)

In addition, it is important to acknowledge that because, under some forms of collective bargaining, a union leader must defend the agreement drawn up, this is not always an uncomplicated virtue.  This responsibility may sometimes limit a union’s ability to make an agreement: “Arbitrators may perform a useful social function in drawing some of the rank-and-file union member’s fire (Walker, op. cit. at p. 451).  This is a particularly interesting remark if the processes of conciliation and arbitration are considered as ancillaries to, rather than the opposite of, collective bargaining at the workplace and industry levels.

Thus, the costs and merits of various collective bargaining systems and the contemporary compulsory conciliation and arbitration experience in New South Wales and in Australia need to be assessed, taking into account all these factors.

• There are problems in assessing how a dual system of compulsory conciliation and arbitration, as it now operates in the New South Wales and Australian spheres, and collective negotiations outside of that system would operate.  In assessing arguments for change, it is necessary to consider significant points against favoured proposals.  Unfortunately, the advocates of ‘opting-out’, as will be discussed below, have little to say about:

• who should decide whether to opt-out?  Is it only the employer?  What say will the relevant union(s) have?

• will opting-out arrangements favour industrial relations delinquents (either employers or unions) moving out of the compulsory conciliation and arbitration system?

• how can governments and the community influence overall wage outcomes and favour sensible labour market changes if the parties decide to opt-out?  Opting-out may mean, for example, that it would be harder to encourage and develop industry training schemes which cover a whole industry and allow for transferable and credible skills.

• what will be the situation in multi-union workplaces and industries where there may be divisions among employers and among workers as to the merits of opting-out?

• what will be the situation in the public sector?

• what would be the place of arbitration in the so-called voluntary contracts area?

• would there be any economic benefits if organisations were able to kangaroo-jump out of arbitration in ‘good times’ and retreat in leaner times?

• what should be the rules allowing for moving back into the compulsory conciliation and arbitration system?

• to what extent would registered agreements be used as precedents influencing the award area?  This is likely to be a complicated question, given the likelihood that, for example, multi-industry unions would have members in both camps and would seek to duplicate gains in one are across an industry.

In a review of opting-out proposals, David Plowman comments that:

An equally difficult problem is establishing effective machinery to separate out the two sectors.  Normally unions have access to both direct bargaining and industrial tribunals, and have been able to switch from one approach to the other.  Because of the discretion generally available to unions in the existing institutional arrangements, it is difficult to conceive of them voluntarily opting to surrender the use of either approach.  Unions in productive industries which at a particular point of time may be able to dispense with the Commission’s service, will not want to move out of the arbitration sphere for two reasons.  The first is that an arbitration provides an insurance policy for lean periods.  The second is that the union’s legal identity is bound up with the registration provisions of the arbitration system.  Few unions will find advantages in opting-out of the arbitration system when the existing arrangements enable them to bargain directly with employers without having to opt-out.  (op. cit. at p. 17)

As argued earlier, the onus of proving the merits of a dual system compared to existing arrangements very much rests on the proponents.  Rhetorical flourish, ideas of wishing away problems in contemporary industrial relations and vague sketches of what alternatives might be are no arguments for a dual system.

• “Like it or not, we are saddled with the inertia of our institutional history” is one jibe which Dr. Issac has utilised against proposals advocating a radical departure from centralised conciliation and arbitration systems (op. cit. at p. 469).  It is not clear how the movement towards the dual system can be achieved, particularly with regard to the customs and practices which permeate Australian industrial relations.  (This point is further discussed in the next section.)  Allowing for differences between industries, the following observation of the 1913 Royal Commission on Industrial Arbitration in New South Wales is still valid:

It has been bought home to me very strongly that the effect of compulsory arbitration and published awards is to give the industrial classes a much wider view of the industrial field and its conditions.  Formerly each union and industry thought of itself.  It might know a little of some allied trades, but a bird’s-eye view of the labouring world and its conditions was rare.  Now all that is altered.  By the newspapers, the reports of the Department, and the training in arbitration work of the secretaries of unions, the industrial world has become like a huge jelly – touch it anywhere and it trembles to its farthest corner.  (Quoted in Walker, op. cit. at p. 444)

If anything, the influence of arbitration in shaping the Australian and New South Wales industrial relations systems has increased in the last seventy five years.  It is not obvious that attempts to break away from the centralised conciliation and arbitration systems are workable or can withstand the criticism that they are utopian, given the historical development of arbitration in Australia.  But as this chapter will discuss, this does not mean that things are destined to remain static.  Indeed, in the sea-changes in the industrial relations system in Australia and New South Wales in the last three years, there has been a demonstration of the enormous flexibility and adaptability of the centralised conciliation and arbitration processes.  This is acknowledged in academic/industrial circles, for example, by Professor Niland in some recent publications.  Therefore, the contemporary repetition of many of the arguments developed in the 1960’s and 1970’s about the rigidity of the Australian and New South Wales conciliation and arbitration systems now sound off-beat and directed against an industrial relations culture which has changed utterly.

In a recent article, ‘Gaining Against the Tide: Australian Unionism in the 1980’s’ (Bulletin of Comparative Labour Relations, 1986), Niland has commented (without arguing or indicating any support for such developments) that:

Deregulatory techniques, some of which are already in evidence in Australia, rise in three forms.  First, management continues to operate through the traditional channels, but mobilises growing public anxiety about unemployment to force special wage outcomes for particular areas, such as youth and workers in especially beleaguered industries.  Initiatives in these directions have been tried, particularly in Western Australia where organised management is more inclined to radical action, but the tribunals and public opinion generally have lent little support and the initiatives collapsed.  A second deregulatory technique is to side step the traditional industrial relations processes by concentrating on special contractual arrangements with individual employees, or by sub-contracting blocks of work to individuals or groups beyond the workplace.  Sub-contractors are seldom unionised and generally lie outside the scope of industrial tribunal regulation.  A mark of concern at this development in Australia is the recommendation in the Hancock Review into Australian Industrial Law and Systems such that ‘artificial’ arrangements to escape the arbitral net be outlawed and such sub-contracted workers be brought back within the industrial relations regulatory mainstream.  Third, management may seek to avoid unionism effects through lobbying governments to remove special status/ preference arrangements for trade union members, even by removing unionism as a legitimate arrangement in some quarters (such as certain emergency service areas)…

Niland admits that “Whether such challenges to unionism gain momentum depend on political fortunes”.  This question will also be decided according to the performance of the conciliation and arbitration system in facilitating labour market flexibility, and the strategies of employers and unions.  Some of these issues are examined in the next section.

4.    Changing The Agenda: The New Right Approach: An Analysis and a Warning

In contrast with the views of Professor Niland which essentially argue about the efficacy of different systems of industrial regulation, are the arguments of the radical deregulationists.  Their agenda is based on an ideological view of unions and the labour market and includes:

• the abolition of so-called compulsory unionism and ‘closed shops’;

• the development of enterprise-based ‘unions’ and employee-share ownership schemes which would encourage greater commitment to the success of enterprise and greater alienation from the objectives of the broader union movement;

• the elimination of compulsory arbitration at both Federal and State levels;

• the elimination of national Wage and conditions cases;

• the use of private conciliation and arbitration services operating on a fee-for-service basis;

• lower tariffs and reductions of other forms of industry assistance to reduce the scope for unions to extract concessions from ‘protected employers’;

• restrictions of award coverage to unionised workplaces, the abolition comparative wage justice and allowing the ‘freedom’ of employees and employers to negotiate directly on all matters relating to employment; and

• so-called equality of standing before the law of employers and unions through the use of, for example, the Trade Practices Act and the common law in the industrial arena.

Items (a), (f) and (h) are discussed elsewhere in this submission namely in the chapters dealing with Freedom of Association, Industrial Development and Industrial Action respectively.  The reader is referred to the ACTU publication Future Strategies for the Trade Union Movement and Australia Reconstructed for the union movement’s answer to the New Right’s industrial agenda.

It might be noted that in presenting the New Right’s base agenda, as outlined above, exaggerates its coherence as most of its policy promulgations might more accurately be regarded as most fulminations.  Nonetheless, the expected results desired by the New Right from such changes would include:

• reductions in union power, leading to more ‘freedom’ for individual employees;

• more radical experimentation in employment packages in the absence of the current restrictive uniformities imposed by the so-called lowest common denominator approach;

• employees would resolve problems with employers at the enterprise level in a more conciliatory and less time consuming and legalistic process;

• common law contracts and new types of unregulated agreements would lead to more flexibility and increased productivity.

The debate between the deregulationists and the interventionists rests on both philosophical and empirical grounds.  In relation to the former ground, the deregulationists share a commitment to the workings of the ‘free market’ and see unions and regulatory intervention as necessary leading to less than optimal outcomes.  Even those who concede that market failure is a problem will stubbornly assert that regulation always has negative externalities and regulatory failure will be greater than market failure.

Most of these views are reflected in the July 1988 Federal Liberal/National Parties’ policy on industrial relations.  One of the objectives of this policy is to “introduce greater certainty and predictability into industrial relations”.  However, there are many reasons to be cautious about such an alleged outcome, as will be outlined below.

It is interesting to reflect that the ideological prescriptions that the New Right proposes in 1988 is the same medicine that would have been prescribed in the 1970’s.  A patient, or in this case, the community of New South Wales, is entitled to be sceptical about remedies which are the same whatever the condition.

Rather than arguing in a theoretical vacuum, the Labor Council argues that it is important to examine the achievements of the conciliation and arbitration system in recent years and attempt to weigh the allegedly deleterious consequences of the centralised system.  Ultimately, as will be shown below, such an assessment is enormously damaging to the kind of arguments as advanced by the Federal Liberal/National Parties’ policy.

In the Australian Bulletin of Labour in late 1986, the following comments were advanced:

Despite the formal structures which bind centralised wage determined processes like the Accord, and which are often reinforced by the rhetoric of the representatives of the peak organisations which are parties to these processes, the reality of the consensual corporatist approach to economic policy formation in Australia, as evidenced in the data demonstrating our recent labour market experience under the Accord, is that wage determination is far more flexible than the formal processes would suggest.  To repeat, it is difficult to imagine how any other institutional arrangement would have delivered such a macroeconomic real wage outcome.  If real wage moderation was necessary for Australia over the past three years, then the Accord has delivered real wage moderation, and, it must be added, with a relatively low level of industrial relations discord.

The Economist, in a wide-ranging feature on Australia, published in March 1987, observed that the Accord:

…boiled down to a deal whereby the unions would settle for low wage increases in return for economic growth, and, with it, government promotion of jobs; hence the fall in real wages which followed it, the surge in 1983-84 that helped to make Australia’s the fastest growing economy in the world, the 600,000 new jobs and the concomitant low rate of unemployment.  One reason that the Accord has lasted much longer than anyone might have expected (and than business admits) is that it was negotiated, not just with the top-bods, but with the thirty leading unionists (anyone, said the Treasury Minister, Paul Keating, who might start a wage round); it was then sold back to the union movement.

Both of these assessments stress that the recent wages and strike experience, up to early 1987, had improved much through the consensual approach between the union movement and the government.  (For a discussion about the reduction in the number and duration of strikes since the Accord period, see Begg, J. and Chapman B., ‘Australian Strike Activity in an International Context: 1964-1985’, Journal of Industrial Relations, Vol. 29, No. 2 June 1987, pp. 137-149.  Approximately one half of the decrease in industrial disputation between 1983 to 1987 resulted from the impact of the Accord.  Beggs and Chapman estimate that the remaining decrease was likely to have occurred anyway.)

It is arguable that the changes from March 1987 onwards in the Australian conciliation and arbitration systems were even more significant than those of the immediately preceding years.  An examination of the consequences flowing from that decision shows that the case was a turning point in moving away from the expectations of automatic wage/price adjustments – and a significant leap to more localised bargaining within a regulated framework.  The decision attributed a clear role for an outcomes policy in addressing the effect of price movements on the real value of wages (see G6800, p. 32).  The interaction of wages and prices and the effect of price movements on real wages remains a relevant factor in wage fixation (e.g., “We accept that concerns about real wages such as those expressed by the ACTU are properly to be taken into account”, August 1988 National Wage Case, H4000, p. 42).  Prices are and will remain a central factor in wage fixation (indeed in any system of wage fixation), although not a sole factor.  The 1987 National Wage Case decision stated that:

Some of the positive changes which we would expect from the application of the [restructuring and efficiency principle] include:

«   there will be an examination of restrictive work and management practices in both the public and private sectors to identify areas of inefficiency and to develop means to overcome them: This objective is to be the subject of agreement between the ACTU, the BCA and CAI and we endorse it;

«   if improved efficiency and productivity require the introduction or extension of multi-skilling and broad-banding, theses will be treated by the parties as an appropriate element in the restructuring exercise;

«   similarly, there should be acceptance of the concept that the reduction of demarcation barriers may be essential to the success of an exercise; and

«   where new classifications are needed to give effect to the changes which have been introduced, the parties will seek an appropriate award variation.

It will be apparent from the changes we envisage that the responsibility for the successful application of the principle must be borne by both management and the workforce.

The Australian Conciliation and Arbitration Commission also laid down a number of strict tests in this area:

The Australian Manufacturing Council pointed out that considerable attitudinal and structural change will be necessary; we wish to emphasis that structural change will depend on changes in attitudes by all.

Although there was general acceptance of the need for the new principle, the parties recognised that in its application there could be inappropriate outcomes.  We share that concern and repeat the warning of the decision of 23 December, 1986 – the new principle must not provide a vehicle for bogus wage increases or other sham arrangements.  The consequences that must be avoided include the following:

«   it would be unacceptable for a plant restructuring exercise which was accompanied by labour force adjustments to have as its consequence a levelling-up of rates of pay.  This could happen if priority was given to the maintenance of relativities;

«   it would also be unacceptable for an agreement to be put forward in purported reliance on the principle in circumstances where there has been no genuine restructuring exercise;

«   the objectives of the principle should not be confused with the obligation to fulfil normal work requirements.  We do not consider that a restructuring and efficiency exercise is an appropriate description of changes leading to no more than compliance with the terms of employment; and

«   a restructuring and efficiency exercise may identify award classifications that are no longer appropriate, but it would be contrary to the purpose of the principle if obsolete award provisions were retained.

The Australian Conciliation and Arbitration Commission’s guidelines, which were also followed by the Industrial Commission of New South Wales, have had positive consequences in many industries – some of which have achieved extremely significant efficiencies.  Indeed, it was essential that there be consistency between the State and Federal arbitration frameworks if those workplace and industry changes initiated through the 1987 National Wage Case decision were to realise positive results.  In many workplaces and industries, the focus is clearly on achievements to improve productivity such that:

• the potential for demarcation is minimised;

• the opportunity is developed to link increased productivity, training, skill formation and wage movements;

• a career structure for employees within the industry is developed;

• a simplified system removing unnecessary classifications is achieved by broad-banding;

• multi-skilling is encouraged; and

• the acquisition of additional skills and responsibilities is encouraged.

Incidentally, one of the consequences of the recent incomes’ policy experience is the increased commitment by unions to a centralised system.  As the ACTU discussion paper Future Strategies for the Trade Union Movement observes:

If the union movement in Australia fails to accept its responsibility to preserve and enhance the system of social regulations on behalf of all workers, then the free market strategy of the New Right will ultimately prevail.  This will imply a system where strongly-unionised, strategically placed groups of workers are ‘bought off’ and the cost passed on to consumers, while poorly-organised or placed workers have their ‘market’ price driven lower and lower in order to prop-up otherwise inefficient businesses and industries and in order to protect excessive profits.

In other words, the unified and overwhelming support of the Australian union movement to the centralised system is essential, particularly in these times, in order to protect Australian workers’ standard of living and national economic well-being.

It should be noted that the shift towards a greater role for negotiation – in part at the enterprise level – was, in fact, controlled negotiation, i.e., negotiation within centrally determined parameters and principles, and not negotiation or collective bargaining without restraint.  The greater ‘flexibility’ which has arisen has, at all times, been ‘controlled flexibility’ within the parameters of a centralised system, not an open road.

It is also important to note in this context that in the recent National Wage Case (August 1988), no-one, not even those who have a strong enterprise bargaining policy (such as the BCA) or the ideologues (such as Mr. Purvis of the Wool Brokers Staff Association – a Nicholls Society member), when pressed, sought collective bargaining or enterprise bargaining without restraint or controls.  This was so because they were aware of the real and practical implications of ‘pure’ bargaining; thus, they sought continued Australian Conciliation and Arbitration Commission control through ceilings and wage fixation principles.  So even the advocates of ‘pure’ bargaining, when it came to the crunch, opted for controlled bargaining or the ‘market with training wheels’.

5.     Opting Out

In complete contrast to the approach adopted in recent National and State Wage Case decisions, is the argument, put forward by the current Federal Leader of the Opposition, that there should be the provision in the industrial relations system for opting-out of the centralised wage structure.  Such an approach, in the Labor Council’s view, would completely destroy the current system.

Indeed, whatever the merits of this policy may be (and the Labor Council can think of nothing to commend it), it would be foolhardy to cause New South Wales to become a social and industrial relations laboratory in contrast to the Federal system.

The Federal Liberal/National Parties’ 1988 industrial relations policy states inter alia:

• As part of making the system of determining wages and conditions of employment more flexible, where employers and their employees agree, they will be free to have wages and conditions of employment determined by agreement between them instead of by an award.  Agreements may take into account such factors as regional economic conditions, the availability of labour and the recognition of skills.

• We will actively encourage the making of voluntary agreements.  Such agreements will assist in developing a common purpose between employers and employees for the benefit of all.

• Voluntary agreements will be available to enterprises of any size.

• The Act will be amended to give voluntary agreements the status of awards.

• The Act will also be amended to provide that the Commission will not have jurisdiction over those industrial matters that are covered by a voluntary agreement whilst the agreement is current.

What is left unaddressed in this policy is how a centralised wage system would co-exist with opting-out arrangements.

Paradoxically, there is a symmetry between the ‘militant’ Left approach towards the conciliation and arbitration system, which was fashionable in the 1970’s, and the New Right approach as reflected in the Liberal/National Parties’ current policy.

However attractive the theoretical arguments may be about the virtues of a free market approach to the regulation of wages, there is the prime requirement that a wages policy needs to be workable.  Further, the criticism that the Accord and the centralised wages policy which emerged in 1983 is inflexible ignores the ‘discounting’ of wage increases which occurred in 1985-86, the drop in the value of real wages over the last four years and the diversity in industrial bargaining achieved as a result of the 1986 superannuation decision and the 1987/1988 National and Stage Wage Case decisions.

One criticism of the kind of approach adopted by the Liberal/National Parties’ industrial relations policy has been advanced by former Australian Conciliation and Arbitration Commission Deputy President, Dr. Issac:

To be useful, economic policy must be workable, not merely ideally desirable.  In this connection, the real difficulty with the economists’ approach on wages is that it is founded on a system where economic power is widely diffused, where the labour market acts impersonally, and where decisions are made by individuals acting singly.  In practice, the labour market is dominated by concentrations of economic power whereby wage fixation, whether by collective bargaining or arbitration, is a conscious administrative decision.  Unions are part of such concentrations of power and, because they are an established and continuing fact of economic life, they cannot be assumed away as fictional elements in the labour market.

This is more than a theoretical indictment of the Liberal/National Parties’ policy, it is also a practical critique.

The December 1986 issue of the Australian Bulletin of Labour summarised a view reflected in the March 1987 National Wage Case decision, as follows:

What, then, are the requirements for a new structure?  It would seem that there are two basic requirements.  The first is the need for the structure to produce a satisfactory (in terms of international competitiveness and domestic employment growth) macroeconomic real wage outcome.  In this, the Accord as it has developed up until the present time, has produced such an outcome in that whatever the other problems facing the Australian economy, it is not in any way, shape or form a problem of excessive real wage growth.  Through a series of both formal and informal devices, real wages have fallen over the last two years…

Given the current institutional structure of industrial relations and wage determination in Australia, it would appear necessary for there to be a ceiling placed on the overall level of real wage growth.  Of course, a central feature of the industrial relations, wage determination debate in this country is essentially about the appropriateness of this structure and power relations that it both applies and reinforces.  However, given the structure, the ceiling place the second tier is an attempt to retain the discipline of appropriate real wage growth that has been a feature of the Accord.

The second requirement is a microeconomic one – to develop a means by which the wage structure can allocate efficiently across industries and occupations and, importantly, to develop a wage determination process which enhances the ability of firms and workers to adapt dynamically to changing economic circumstances, that is to adopt work practices and work organisation which increase productivity in the light of changing economic conditions.  Presumably, the reason for the second tier, the band between the minimum flat dollar amount which applies to all workers, and the maximum percentage increases dictated by macroeconomic real wage considerations, is to enable relative wages to display more flexibility than they would under a uniform wage indexation (full or partial) rule.

In August 1988, after seventeen months experience with the new wage fixing arrangements, the Australian Conciliation and Arbitration Commission endorsed the continuation of the processes of award restructuring and the encouragement of workplace negotiation and bargaining.  The 1988 National Wage Case decision welcomed the second tier system outcomes of moderate and restrained wages growth, coupled with increased labour flexibility at the local level.  But all of this could not have been achieved outside a centralised, regulated framework with strong union support.  (For discussion of this, see McDonald, T., and Rimmer, M., ‘Award Structure and the Second Tier’, Australian Bulletin of Labour, June 1988 at pp. 469-491; Frenkel, S. and Pratt, G., ‘Workplace Industrial Relations in the Metal Industry: Some Pointers From Survey Research’, LPS/CIRRUS Working Paper No. 5, August 1988.)

Many of the advocate of opting-out seem to assume that wage outcomes would occur in a downward direction only.  The reality, however, is that such action would lead to opting-out in favour of higher wage levels rather than lower levels.  Indeed it is more likely, if choice is involved, that opting-out will be in favour of higher wage levels rather than lower, leading again to higher aggregate wage movements.  In practice, wages are more flexible upwards than downwards.

It is only through a centralised system that government can have any effective input into wage fixation and aggregate wage movements.

As outlined above, the industrial relations system in Australia and within New South Wales has almost transmuted itself.  What is now occurring is the development, within a centralised framework, of improved industry and workplace bargaining together with the recourse to compulsory conciliation and arbitration.  There is a good deal of evidence to show that the Australian Conciliation and Arbitration Commission and the Industrial Commission of New South Wales (including commissioners) are now important vehicles to improve the industrial relations climate and catalysts to better labour market outcomes.

Without an effective wages policy, and given Australia’s inflation-prone history over the last two decades, it is likely that there will be a return to a cycle of boom and bust – with strong growth leading to an escalation of wage demands and rising inflation.  The consequent introduction of tight monetary and fiscal policies to contain wage increases and inflation would lead to rising unemployment, inevitably leading to government stimulus for political reasons – and a consequent further escalation of inflation and economic ruin.  It is precisely those consequences which the Accord processes are aimed at preventing.

Labour Market Deregulation in New South Wales and the Threat to Migrant Workers

1.     Introduction

It would be a cruel hoax if, under the banner of liberalism and labour market deregulation, the New South Wales government were to implement the quit-the-system aspects of its industrial relations policy.  For although the advocates of opting-out of the conciliation and arbitration system usually dress up their claims as opening up employment opportunities, the reality would be that vulnerable sections of the workforce, particularly migrant workers would be far worse-off under such a system.

The Labor Council argues that the union movement and the conciliation and arbitration system are vital to protecting the rights of workers identified as being disadvantaged in the labour market.

This section of the chapter will therefore summarise some of the activities of unions to protect migrant workers and advance their interests.  Moreover, a critique of the Liberal/National Parties’ policy in the migrant employment area and their possible consequences will be outlined.

2.    Migrants And Unions

The problems faced by migrants to Australia, particularly those from non-English speaking backgrounds, include language, culture and adaption to an often significantly different work style, industry or occupation to that experienced in the mother country.  The workplace has become a melting place of nationalities and cultures.  Unions, as representatives of workers, have been required to assist migrant workers, especially those whose first language is not English.

It is certainly true that in the post-war period more could have been done by unions for migrant workers.  But this criticism also applied generally, and especially to most employers and employer organisations.  So it is eccentric or mischievous to condemn the union movement alone on this score.

Interesting, in view of the current controversies, is the fact that union leaders have, on the whole, been more sympathetic to immigration and the plight of migrant workers than the community generally.  This is so, as indicated by the participation of the ACTU and the Labor Council leadership in the immediate post-war Immigration and Advisory Council and the advocacy by those leaders of high immigration intakes and humane assistance for new settlers during the post-war period

In more recent times, and particularly over the past decade, the Labor Council has devoted considerable effort and resources to the needs of migrant workers.  The Labor Council’s activities to assist migrants workers have included:

• Servicing the Ethnic Affairs Committee of the Labor Council which is composed of representatives from affiliated unions.

• Liaison with unions and workers on ethnic affairs issues.  This includes surveys of union migrant needs.

• Development of an ‘English on the Job’ kit which outlines the importance of attaining English language training, facilities available through the Adult Migrant Education Service, experience with work-based English language training, ways and means of obtaining agreements with employers covering English language training.  The kit has been developed in close consultation with the Ethnic Affairs Commission of New South Wales.  The Labor Council is also campaigning to:

• target individual unions to encourage them to lodge claims for paid training time for English language classes;

• support English language training campaigns; and

• develop information/awareness strategies on the needs of migrants to learn workplace English.

• Media campaigns to heighten awareness of the rights of workers, including award entitlements and occupational health and safety responsibilities, e.g. as occurred with radio station 2EA in 1987, where interviews and announcements on industrial rights were developed with Labor Council assistance.

The Labor Council has also produced leaflets condemning racism, as well as organising anti-racism campaigns at various workplaces.

• Education activities through the Trade Union Training Authority (TUTA).  The Labor Council Ethnic Affairs Unit has been responsible for TUTA allocating resources to provide for the training of migrant workers in their own language.

• Family reunion cases raised by unions.

• Interpreter and translator services in conjunction with the Ethnic Affairs Commission.  The Commission has found it valuable that the Labor Council act as a co-ordinating point for requests in this area.

• Traineeship activities and the targeting of migrant groups for awareness information in this area.

• Government liaison in a wide range of areas.  The Labor Council is represented on a number of New South Wales government committees and works closely with government officers.  For example:

• the State Rail Authority’s English as a Second Language Programme and similar programmes in other statutory authorities;

• representation on committees dealing with traineeships;

• involvement in various employment projects;

• the New South Wales Occupational Health, Safety and Rehabilitation Council’s Advisory Committee;

• the Migrant Employment Working Party of the State Government Task Force; and

• the English as a Second Language Advisory Committee.

Besides all of those activities, unions act to ensure the protection of migrant workers by:

• advancing grievances with employers and seeking to resolve workplace problems;

• endeavouring to improve wages and conditions;

• ensuring health and safety awareness (including translation of material) is more prominent than would otherwise be the case; and

• providing for the democratic participation of migrant workers in their organisations.

On any fair-minded assessment, it must be admitted that more has been collectively achieved by the union movement for migrant workers than any other organisation in the community.

So far as the future is concerned, it is certain that, primarily for economic reasons, Australia will continue to attract large numbers of migrants.  If past patterns are to be repeated, it is also certain that, of all the States, New South Wales will attract the largest number of migrants.  It is also noted that in the 1980’s, the migrant intake into Australia has been broadened to include a larger percentage of migrants from South East Asia and the Middle East.  Those migrants are entitled to fair treatment by the Australian community, including adequate English language training and suitable induction programmes in the workplace.

All these factors, together with the government’s commitment to fostering equality of opportunity throughout the community, including at the workplace, will fundamentally affect the operations of unions.  The Labor Council believes that it is important to:

• examine the effectiveness of work-based ‘English as a Second Language’ programmes;

• maximise the provision of information, including translations, of information relating to employee rights and opportunities;

• extend access and awareness of programmes, including New South Wales government programmes, in the employment and traineeship areas.  There is also a critical need to examine the effectiveness of activities in those areas;

• discuss ways and means of unions acting to assist migrant rights and opportunities at the workplace and participation in their organisations;

• relate to government actions to foster tolerance and better understanding at the workplace and in the wider community, including amongst New South Wales government employees; and

• assist new migrants to understand the nature of the New South Wales economy and industry and their opportunities in this context.

These tasks are union business.  They are also challenges for the Department of Industrial Relation and Employment, if it is to devote resources and real effort to assisting migrant workers.

3.    Deregulation And The Threat To Migrant Workers

The following quotes are taken from recent Liberal Party pronouncements:

We are preparing a Private Members’ Bill to give legal recognition and enforceability to voluntary agreements between employer and employee and give such agreements, to the extent that they cover the terms of employment, legal status independent of awards.  — Industrial Relations: a speech by Nick Greiner (1988)

The Liberal Party recognises the desire of settlers to participate equally in all aspects of Australian political, economic and cultural life.  All Australians should be able to understand and have access to the institutions of our society.  We will ensure equality of opportunity for equitable participation in our society to share both the benefits and responsibilities of our nation.  — Liberal Party of Australia: Immigration and Ethnic Affairs Policy (1988)

The two statements quoted above are in fundamental contradiction.  The Liberal immigration and ethnic affairs policy adopts the aims of “access and equity”.  As such, it fairly takes into account the basic interests of non-English speaking migrants.  (This is not to pretend that the whole policy is reasonable, as the Labor Council utterly rejects the racist sentiments implied in the promise to cut-back intakes from certain regions, levels that would somehow threaten ‘social cohesion’.)

On the other hand, the Industrial Relations Policy of the New South Wales Liberal government poses an extreme threat to the rights and working conditions of all workers, migrant workers in particular.  The result of the policy would be to institutionalise inequality in the workforce.  That would certainly occur with any by-passing of the legal protection of the award system which has developed over ninety years.

The main obstacle to the realisation of this policy are the unions.  The main victims, if the policy is ‘successful’, will be those workers who are identified as being the most vulnerable members of the labour market – migrants, women and youth.

The aim of this section of the chapter on labour market deregulation and labour market flexibility is to expose the hypocrisy of the New South Wales Liberal government’s policies.  It will show that the good things in the Ethnic Affairs Policy are just empty words when weighed against the attacks on the conditions of migrant workers represented by the Industrial Relations Policy’s:

• introduction of individual work contracts;

• removal of the democratic right of unions to organise;

• threats to workers’ compensation benefits, including ‘top-up’ rights;

• large-scale retrenchments from public utilities; and

• increasing employers’ powers to stand-down workers.

Below, we examine in more detail some of the major areas of attack.

Individual Work Contracts: An Insidious Form of Exploitation

Liberal Party rhetoric often speaks of ‘freedom of choice’, ‘incentive’ and ‘individualism’.  These concepts are held up as virtues which have applicability in every sphere of life.  Yet in the real world of industrial relations, these are the words of employers looking for excuses to cut wages and conditions: they are the ‘fig leaves’ which are used to conceal the real intentions of employers.  Specifically, the Liberals have foreshadowed the introduction of an individual work contract system which is aimed at circumventing existing industrial awards.  Moreover, paid sick leave, holiday leave and workers’ compensation are not guaranteed by the individual work contracts system.

The Liberal’s arguments for individual work contract arrangements run something like this: the wage system is currently ‘too rigid’; it does not give incentive to workers to perform or for management to manage; and small business, especially, cannot compete with the demands for higher wages.  What is needed, they argue, is an ability for workers and employers to sit down together and make their own work arrangements: only then will productivity increase.  Aligned to such assertions is the claim that deregulation will ensure greater employment growth and opportunities for all.

However, these arguments have at least two fatal flaws.  The first is the proposition that increasing wages are making businesses uncompetitive.  The reality is that workers in Australia have suffered a net decrease in real wages over the last three years.  Also, Australia’s major trading partner, Japan, has a much higher average wage than Australia.  No Liberal would be so naïve as to suggest that Japan is uncompetitive as a result.

The other major flaw is the notion of equality of bargaining between the employer and the employee.  In other words, for individual work contracts to be fair, the employer has to need a particular worker as much as the worker needs the job.  Generally speaking, but especially at a time of continuing high unemployment, such a situation is extremely unrealistic.  For example, what measure of equality would exist between the management of a chicken factory and a migrant female process worker of that company?  What sort of individual work contract could she hope to negotiate?

Presenting the issue in such a light shows up the absurdity and the insidious outcome of Liberal policy.  Individual work contracts pose a particular threat to migrant workers for two reasons.  Firstly, some employers will attempt to exploit migrants’ limited understanding of entrenched industrial rights to force unjust exploitative agreements upon them.  Secondly, there is little doubt that it is the industries with a high migrant workforce which are being ‘targeted’ for the introduction of individual work contracts.  Such industries can be generally described as poorly-paid and, from the employee’s point of view, needing strong union organisation.

While individual work contracts are put forward as a radical new solution to perceived industrial woes, they are nothing of the sort.  Forms of individual work contracts have existed side-by-side with the award system for many years.  In many instances, they represent the worst form of exploitation of workers.  Many of the workers involved in such work arrangements are migrants with poor English skills and limited understanding of industrial rights.  Some examples are outlined below:

Body hire:  As the name implies, this practice involves working on a casual basis – usually to do labouring work for companies who do not record the worker as an employee.  ‘Body hire’ companies are notorious for exploiting workers and commonly pay well-below legal requirements.  Such companies frequently take particular advantage of new migrants experiencing difficulties in obtaining employment.

Piece work:  This basis of work and payment is still prevalent in some industries, whereby a worker is paid per item rather than on a time basis.  Outworkers in the clothing industry (workers who make up garments at home at a set price per item) are a classic example of an exploited section of the workforce in this respect.  Some outworkers are documented to have earned as little as $2 per hour – while paying for all their own overheads.  Many outworkers are migrant women with little or no knowledge of their legal rights as workers.

Pyramid sub-contracting:  This is a work arrangement which is likely the closest in substance to the proposed individual work contracts system.  Pyramid sub-contracting involves an employer labelling employees as sub-contractors, thereby attempting to avoid legal responsibilities such as workers’ compensation.  It is also a major means of avoiding taxation.  Because they are designated as sub-contractors, the workers affected forgo much of the legal protection an employee is entitled to.  Most workers that are designated as sub-contractors do not even realise that this is the case until some problem arises involving some form of liability on the part of the employer.  It is likely that individual work contracts will work in much the same manner.

4.    Conclusion

The Labor Council argues, and this brief overview sustains such argument, that the union movement’s and migrant workers’ needs and interests are symbiotic.

The Labor Council condemns much of the rhetoric proposing a move away from the centralised conciliation and arbitration system, as outlined earlier in this chapter.  This part of the chapter demonstrates that the analysis of Cesar Chavez and Baynard Rustin about moves in the United States in support of ‘right to work’ laws can also be applied in Australia.  Discussing such moves, the authors say:

“We have heard them all – ‘property rights’, States’ rights’ ‘right to work’.  All of these slogans…as you will notice, have been uttered in ringing tones of idealism and individual freedom.  But that is the special genius of those who would deny the right of others to hoard the fruits of democracy for themselves: They evade the problems and complex challenges of equal justice by reducing them to primitive oversimplifications that plead for nothing else but the perpetuation of their own exploitative interests.”  (see the pamphlet Right to Work Laws at p. 4)

Nothing can be more certain than that opting-out on a grand scale would mean the watering-down of workers’ rights and the ability of unions to effectively function.  This is a result which would be destructive to justice at the workplace and the achievement of increased wages and improved conditions for workers.  In this sense, the implementation of Liberal Party policy on industrial relations invites a social disaster.

1.     Compulsory And Preferential Arrangements

A good deal of idiocy is associated with many debates about compulsory unionism and preference to unionists arrangements.  It is hotly argued in some quarters that compulsory unionism is a denial of fundamental human rights and that coercion in this area requires redress and governmental action.

The Labor Council argues that those workers benefiting from union activity should not escape their obligations scot free.

In this context, the Non-Unionists’ Psalm is apposite.  It reads as follows:

The dues paying member is my shepherd,

I shall not want,

He provideth me with rest days and vacations,

So that I may lie down in green pastures

Beside the still waters.

He restoreth my back pay,

He guideth my welfare, without cost to me.

I stray in the paths of the non-righteous,

For my money’s sake.

Yea, though I alibi and pay no dues

From generation to generation

I fear no evil, for he protects.

The working conditions which he provides,

They comfort me.

He annointeth my head with oil of workers’ compensation,

Sick pay, annual leave and long service leave,

And the thirty-eight hour week.

And my cup runneth over with ingratitude.

Surely his goodness and loving kindness

Shall follow me all the days of my life

Without cost to me.

I shall dwell in his house forever

And allow him to pay the bill.

The main purpose of this chapter will be to argue that the principles underlying preference for unionists arrangements which are provided for under New South Wales law should be defended.  Nothing should be done to upset such arrangements under the mischievous ruse of banning compulsory unionism.

2.    The New South Wales Law

Trade unions, as discussed elsewhere in this submission, are required to be registered under the Trade Union Act and, if participation in the State conciliation and arbitration processes are to be allowed, under the Industrial Arbitration Act.

One of the purposes of the conciliation and arbitration system has been to encourage the registration of representative organisations of employers and employees.  Hence, the provisions in sections 8 and 115 of the Industrial Arbitration Act.

In the Conciliation and Arbitration Act, there are express or stated objects including one ‘to encourage the organisation of representative bodies of employers and employees and their registration under this Act’.  Although this is not spelt out in the Industrial Arbitration Act, there is an overwhelming case that any statutory and compulsory system of industrial conciliation and arbitration necessarily must encourage representative registered bodies on both the employer and employee sides to articulate the disparate views of individual members and to consolidate those views, expressing them as the views of a corporate body.

Sir Victor Windeyer, sitting as a justice of the High Court of Australia, acknowledged that the Conciliation and Arbitration Act ‘is based upon the existence of industrial organisations of employers and employees’ and acknowledged that the desire of a union to add to its membership numbers was a ‘legitimate aim’ (see R v Holmes; ex parte Altona Petrochemical Co. Pty. Ltd. (1972) 126 CLR 529 at 573).  The same can certainly be said at the State industrial level.

Similarly, in Federal Clerks’ Union of Australia v Altona Petrochemical Co. Pty Ltd. (1973) 150 CAR 387 a Full Bench of the Australian Conciliation and Arbitration Commission said of the Conciliation and Arbitration Act:

“We cannot, as a matter of law, introduce compulsory unionism, but we think that the Act, which is our charter, contemplates that we should encourage unionism.  If the implementation by us of a statutory intention reduces the absolute freedom of management, then we think even so we must apply that intention in such a way as we think proper”.

Section 129B of the Industrial Arbitration Act provides for preference for unionists arrangements, namely, the Industrial Commission or a conciliation committee may make arrangements providing for:

• absolute preference at the hiring and firing stages of the employment relationship;

• exemption from this provision for those persons who have a conscientious belief against joining a union;

• wide conscientious belief provisions such that this “includes any conscientious belief whether the grounds thereof are or are not of a religious character and whether the belief is or is not part of the doctrine of any religion”;

• regulations providing for the procedures for a person claiming conscientious objection to union membership leading to the issuing by the Industrial Registrar of a Certificate of Exemption from membership of an individual union;

• appeal rights to the Industrial Commission for any person denied a certificate of exemption; and

• payment into consolidated revenue of an amount equivalent to the subscription prescribed by the rules of the union for membership of that union.

It follows from this description that it is a nonsense to assert that compulsory unionism is allowed under New South Wales law.  Also relevant is the fact, as argued earlier (in section 9 of the chapter discussing the Review of the New South Wales Industrial Relations System), that preference is limited to the situation whereby ‘all things are equal’.  It is also nonsensical to claim that unions have the right to exclude persons from union membership ‘whom they do not like’.  In fact, s.115 provides that:

• “All persons who are, by the nature of their occupation or employment, of the class of which a trade union is constituted, and who are not of general bad character, shall be entitled to be admitted to membership of the union, and to remain members thereof and enjoy all the advantages of membership so long as they shall comply with the rules of that union”.

This provision virtually compels unions to admit to their membership any person of good character entitled to and wanting to join.  Moreover, the law provides for review of an action by a union officer or executive seeking to deny or frustrate a person from joining a union:

• “Any question or dispute as to the character of any applicant or the reasonableness of any admission fee, subscription, fine or levy or other requirements of the rules of any trade union, shall be determined by the Commission, which shall also have power to direct that the rules of a trade union shall be altered or annulled in any particular order to bring them into conformity with what it declares to be reasonable in the circumstances, and upon any such direction being given the rules affected shall be deemed to have been altered or annulled accordingly’.

Thus, it can be clearly shown that the claim that joining a union in New South Wales is a matter of arbitrary union fiat is a myth.

3.    Justification of Preference Arrangements

In sum, one’s attitude to the question of preference to unionists depends on views with respect to unionism and the role of the compulsory system of conciliation and arbitration.  In the first case involving preference dealt with in the Federal arena, Mr. Justice Cohen in the Trolley, Draymen and Carters Case (1904 A.R. 38) granted a preference clause and said:-

No doubt, one of the cardinal principles of the Act is collective bargaining, and collective bargaining, so far as the employees are concerned, through the industrial unions of employees.  And when we get collective bargaining, we go a step further, and we find that this Court can only exercise jurisdiction on the application of the employees when those employees are incorporated in an industrial union, and therefore, so far as they are concerned, it is the industrial union which, I may say, gives life which maintains the existence of the Act…  It may be, that in giving preference to unionists, inconvenience, or in some cases hardship, may be imposed on the employers; but on the other hand, if preference is not given, it may be said by the unionists that hardship and inconvenience may be imposed on them; and so, whichever course is adopted I suppose it would not be free from objection.  Then finding in this case, according to the evidence, that the claimant union substantially represents the industry so far as the employees are concerned, I consider that I am justified in granting preference to unionists.  Another consideration which has always weighed with me is this – I do not say it is a conclusive reason, but it is one which, rightly or wrongly, I am unable to discard from my mind, – the industrial unions of employees bring the disputes connected with their respective industries before the Court.  They incur all the expenses, take all the labour, have all the trouble in preparing their case and submitting it to the Court; and I will assume that in any given case they get conditions more favourable to the employees than those which existed prior to the initiating of the dispute and the award of the Court being given.  Now, if there is to be any encouragement at all for the settlement of disputes as between the employers and employees, and the employees’ union is to be deprived of the only condition which operates in favour of the union – that is, the preference condition –then it seems to me that all encouragement for the unions would disappear, and that practically this Act, which is an Act encouraging the formation of industrial unions, and encouraging them to bring their disputes into Court rather than have recourse to the old method of strikes, would become to a great extent inoperative.  I very much fear that, unless within reasonable limits preference is given to unionists, industrial unionism will become a thing of the past.  In the minds of some people that may be a very good thing, or it may not.  All that I can say is, that it is not for me to discuss the wisdom of the Act; I must accept the Act as the policy of the country – as the declared will of the country.  In exercising my judgment, I do that which I believe to be, within reasonable bounds, guided by what is apparent from the existence of the Statute itself – the accepted policy of the country. (emphasis added).

This judgment sums up the main arguments in favour of preference arrangements – essentially to facilitate the orderly workings of the conciliation and arbitration processes through support for representative organisations of employees.  But Mr Justice Cohen also recognised that his decision would displease those who champion absolute individual rights in this field.  In reality, there is a conflict of opinion regarding the application of such principles.  And in all such conflicts relating to the morality and utility of a particular concept, it is a matter of judgment when balancing and deciding which rights and arguments should prevail.

However, as Sidney Hook in Paradoxes of Freedom (1961) has argued “….it is a profound error to conceive of balancing as if it were a process of value deliberation in which all elements have equal weight, as if nothing had been historically and politically established by its fruits in experience, and every decision taken with the innocence and freshness of the first morning of man.  There are presumptions of validity, which, even if not final, are still presumptions, which give overwhelming weight to freedom of press when this interferes with freedom from litter of city streets, or to freedom of expression when this disturbs another person’s peace of mind” (at pages 54, 55).

In putting forward such argument, the Labor Council also recognises the mighty task ahead of the union movement to recruit and organise large sections of the workforce.  Such strategies are set out in the ACTU publication, Future Strategies for the Trade Union Movement (1987).

Another opinion worth canvassing here is that of the New South Wales Anti-Discrimination Board in its 1983 publication Trade Unions: Membership and Non-Membership where is argued (at page 248):

While the Board acknowledges that employees can be disadvantaged because of their union membership and activity or their non-union membership, such cases do not always, or necessarily, constitute discrimination.  Industrial relations is a complex field involving the balancing of the rights of quite disparate groups such as employers and employees, unionists and non-unionists, whose interests are often in direct conflict.  This can make discrimination difficult to determine.  For example, while it disadvantages the non unionist, union membership can be a legitimate requirement where it signifies the possession of a trade skill or is stipulated justly by an employer as an essential job requirement, as it may be for personnel reasons, along with other conditions such as hours of work.  In the latter case, a person who accepts the job in full awareness of its conditions but then refuses to join the union, does not meet all the job requirements and can hardly complain of unfair dismissal if such action results.  There are yet other cases where discrimination against non-unionists would seem apparent at face value, but redress for these individuals would, in the long term, undermine “the common good” by weakening the power of unions to represent and protect working people generally.  It would be a short-sighted policy, indeed, that defended the rights of some individuals while jeopardising the rights of the majority.

Despite such argument, there is the clamour by the ideological conservatives that there should be an absolute right not to join a union.  But this is a strange battle cry when such a proposition is already guaranteed by law.  Obviously the shield manufactured to batter down the imaginary doors of compulsory unionism is really aimed at preference arrangements – despite the historical origin and the good industrial relations achieved through such arrangements.

4.    The Relevance of ILO and UN Conventions

Two documents are widely cited in arguments about compulsory unionism and preference arrangements, namely the Universal Declaration of Human Rights (1948) and the ILO Convention No. 87 (1948).  Not for the first time are the same words used to justify opposite conclusions.  This section will attempt to vindicate the obvious – namely that the Declaration and Convention 87 are not of any value to the employer side of the argument.

It is frequently alleged that union security arrangements such as the closed shop, membership agreements and preference to unionists infringe basic human rights.  In support of this allegation, reference is commonly made to the Universal Declaration of Human Rights (UDHR), which provides, inter alia, that:-

“No-one may be compelled to belong to an association”

Article 20(2)

But what does this wording mean?

It is not a simple matter to determine the meaning of any particular clause of the Declaration.  Nor, however, is it impossible; but it is not a simple matter because of the nature of the Declaration, which has the status only of a general statement, not a legally binding treaty.  As such, its provisions may not be tested in place or by any means of judicial review.

The Declaration was designed as a general statement only by the member states – so that agreement upon its terms would be easier to obtain than if it were to be a treaty or covenant which created legally binding obligations on those who ratified it.  This is not to take anything away from the document, which has proved itself to be of particular moral suasion.  But the Declaration must be recognised for what it is – and what it is not.

It does not pretend to be the last word on any particular subject.  Its general provisions have been subject to particular applications in specified areas.  This is true of Article 20 (2), particularly with the development of ILO Conventions and other Conventions in other United Nations supported or related bodies.  Indeed, the original committee (chaired by Eleanor Roosevelt) which proposed within the United Nations the Declaration of Human Rights, including the Declaration of Freedom of Association, excluded from its consideration the question of the closed shop.  Nonetheless, from that date to this, there has been the dishonest promotion of the “freedom of association” slogan as having application in a field which was specifically excluded.

In any event, as earlier outlined, there is no such thing as compulsory unionism in New South Wales, particularly given the conscientious objector protections in the existing law.

A recent publication by the ILO on Freedom of Association (1987) provides a detailed commentary on the relevant ILO Conventions, including Convention 87 (Freedom of Association and Protection of the Right to Organise) and Convention 98 (Right to Organise and Collective Bargaining).  The following observation is made (at page 40):

In many countries, the law guarantees, directly or indirectly, what is sometimes called ‘negative freedom of association’, that is, the right not to join trade union organisations, and forbids the exercise of any constraint that would oblige a person to adhere to or support a trade union.

In a number of countries, the law allows ‘union security clauses’ in collective agreements or arbitration awards.  The legislation sometimes imposes conditions on particular types of union security clause or prohibits specific arrangements of this kind.  Such clauses, which have the effect of making trade union membership or the payment of union dues compulsory, may take different forms, of which the following are examples:

• clauses specifying that an employer can recruit only workers who are members of a trade union and must remain members of the union in order to keep their jobs (the closed shop);

• clauses under which the employer may recruit the workers he chooses, but these must then join a union within a specified period (the union shop);

• clauses that make it compulsory for all workers, whether or not they are members of trade unions, to pay union dues or contributions, though these do not make trade union membership a condition of employment (the agency shop);

• clauses under which the employer, according to the principle of preferential treatment, agrees to give preference to trade union members in respect of recruitment and other matters.

The aim of these clauses is to strengthen the position of the trade unions by ensuring that they become better established among workers, by giving them greater weight in relation to employers and by ensuring that all workers who benefit by the work of trade unions contribute to them fairly.

The ILO, in this publication and consistently elsewhere, has maintained the position it adopted in 1948 – namely that union security clauses are neither sanctioned nor prohibited by its Conventions.  So it is completely wrong to assert, in the Australian context, that such Conventions favour some absolutist and individualist arguments against preference to unionists clauses in awards or individual agreements.

5.     Labor Council Proposals

Labor Council policy on conscientious objection states:

Labor Council recognises that individuals in a pluralist society are entitled, should they have religious or ethical objections to trade union membership, to act upon those objections and to refrain from joining a trade union.  Consistent with this principle such persons should not suffer any form of discrimination because of their refusal to join a trade union.

However, Council believes that the exercise of this right should be strictly controlled in order to prevent its being abused by persons who do not possess a real religious or ethical objection to union membership.  For this reason Council endorses completely the statutory requirement that holders of conscientious objection certificates should pay an amount equal to the relevant union dues into Consolidate Revenue.

Labor Council is, however, concerned about the lack of involvement of unions in the conscientious objection certificate issuing procedure.

In particular, Labor Council calls upon the state government to amend the Industrial Arbitration Act in two respects in relation to conscientious objection:

• Require the Registrar
• to notify Labor Council of all applications for conscientious objection certificates before these applications are dealt with, to enable unions who wish to do so to lodge an objection to the granting of a certificate.

• to notify Labor Council of a list of all current conscientious objection certificate holders and the date of granting of each certificate;

• to supply the Labor Council a list of all current conscientious objection certificate holders and the date of granting of each certificate; and

• to extend the current 14 day period for lodging of objections to 28 days.

• Allow unions to appeal to the Commission from a decision by the Registrar to issue or to renew a conscientious objection certificate.

Persons whose genuine religious beliefs do not allow them to become union members should apply to the relevant union for an exemption from the operation of preference provisions in awards and agreements…An appeal to the Industrial Registrar should be available against a decision not to grant an exemption.  The guidelines for dealing with appeals should be set out in the Act and the union concerned should have the right to be represented in any appeal proceedings.

Interestingly, it might be noted here that some countries allow employees who refuse to join a union or conscientiously object to union membership to pay a service fee to the union.  For example, in the United States, there are many examples of contracts negotiated between unions and employers which require non-union members to pay for the cost of achieving and maintaining a particular agreement.

On the issue of preference, Labor Council policy states:

Labor Council believes that the organisation of workers into trade unions is the most fundamental prerequisite to the achievement of industrial justice.

It is only fair that the cost of supporting unions should be borne by all who benefit from them.  Since improvements in wages and conditions gained by unions flow on to all workers, it is equitable to insist that union membership in the workplace be encouraged and required by the use of all legal and legitimate means.

Council calls upon the New South Wales government to support the unionisation of workers in the following manner:

• The extension of the preference provisions of the Industrial Arbitration Act to require preference to unionists in all matters relating to employment, including:

• the point of employment;

• transfer or retention;

• promotion;

• preferred dates for leave rosters;

• preferred dates and positions for return from leave without pay;

• maternity leave;

• retrenchment, redundancy and redeployment; and

• service or employment with related corporations, employers and departments.

• The implementation of a policy of giving preference in the award of government and statutory corporation contracts to employers employing union labour.

1.     Introduction

Discrimination in employment is considered by the Labor Council to be a fundamental industrial matter and, as such, should be dealt with in the mainstream industrial system.  Such an approach requires a radical re-orientation of the New South Wales industrial relations system in order to ensure that discrimination questions are as run of the mill as disputes over wages and other working conditions.  Questions relating to discrimination in employment against the handicapped, Aboriginals, persons holding certain religious persuasions and so on are union business.

It therefore follows that what the Labor Council is arguing for is a far cry from what is sometimes sensationally and crudely alleged – namely that the Labor Council is interested in trapping ‘discrimination in employment’ disputes within the purportedly narrow confines of the New South Wales conciliation and arbitration system, which is also said to be a conservative backwater.  Such assertions have a hallucinatory quality and are particularly ludicrous given the wide jurisdiction that can be covered through the industrial relations system.

The purpose of this paper is to examine the following areas:

• The record of the union movement;
• Anti-discrimination legislation;
• Proposals for change;
• Arguments about such proposals;
• Other industrial legislation;
• Maternity, adoption and family leave;
• Migrant workers;
• Affirmative action;
• Age discrimination; and
• Supported employment.

2.    The Record of the Union Movement

Since the anti-discrimination credentials of the union movement are sometimes challenged, it may be important, from the outset, to ‘set the record straight’.

Although this is widely unacknowledged, campaigns against unreasonable discrimination by employers of their employees have been one of the common practices of unions.  Usually, unions are philosophically inclined to humanise and democratise the workplace.  In this context, the activities of unions should be seen as extremely diverse.

It is almost incoherent to discuss the position of ‘the union movement’ as such, given the diversity within the movement.  This range of differences and activities should qualify any criticism of a particular union or a group of unions as if their behaviour typifies unionism as a whole.  It is important to recognise that unions very largely reflect the views and aspirations of their members.  As fallible institutions, particular unions can be faulted historically and recently for certain decisions or failures to take appropriate actions.  After all, unions, like other social organisations, represent individuals who as human beings are creatures for whom behaving decently, reasonably and generously will sometimes be something of a strain.

Discrimination in employment has been a matter of major concern to the Labor Council for many years.  For example, in the late 1960’s and early 1970’s, the ACTU was responsible for the Equal Pay Case victories before the Australian Conciliation and Arbitration Commission.  Equality of pay and respect was also at the heart of those cases fought by the ACTU in the late 1960’s addressing the discrepancy between the wages and working conditions of Aboriginal stockmen and other workers in that industry.  Both the ACTU’s and the Labor Council’s policies reflect the desire of the union movement to eradicate discrimination in work situations.

This desire is demonstrated by the Labor Council and the ACTU actions in recent years to:-

• Encourage greater participation of women in unions and to support a higher priority to the concerns of women unionists.  The Labor Council, for example, has employed Womens’ Advisory and Child Care Officers.  Likewise, the ACTU has officers involved in womens’ liaison, as well as employing a Child Care Officer.  None of these positions existed nine years ago.  Both the ACTU Executive and the Labor Council meetings regularly receive reports from the ACTU and the Labor Council Working Womens’ Charter Committees respectively.  Those Committees are very active in promoting measures to eliminate unfair discrimination.

• Encourage affiliates to insert anti-discrimination clauses into awards.  The Labor Council, for example, has drafted for affiliates clauses to be inserted into State awards which would make it unlawful for an employer to discriminate against an employee, or an applicant for employment, on grounds related to race or sex, physical or mental handicap or other grounds unless such discrimination is based on the inherent requirements of a particular job.  The Labor Council would, however, prefer that amendments be made to the existing Industrial Arbitration Act to extend and clarify the anti-discrimination scope and powers of the New South Wales conciliation and arbitration system.

• Attempt to mainstream traditional concerns of women unionists into the overall activities of the union movement.  In September 1984, for example, the ACTU launched the Action Programme for Women Workers.  In the preface to the first Progress Report, the Secretary of the ACTU, Mr Bill Kelty, commented:

With the launching of the Action Programme, the ACTU showed that ‘women’s issues’ (many of which affect men as well as women) were to be given a higher priority.

There has been a tendency in the past for some sections of the union movement to regard women’s issues as peripheral.

The ACTU believes this must change.  The Action Programme has brought many women’s issues into the mainstream of ACTU activities and they are being treated in the same way as other industrial issues.

Since the launch of the ACTU Action Programme for Women Workers, the ACTU and State branches have been active in the areas of:-

• the successful conclusion of a test case to extend maternity leave provisions to adopting mothers;

• pursuing the provision of child care including work-related child care at various workplaces; the expansion of Federal government assistance, particularly financial assistance, in recent years is directly related to ACTU activities and lobbying;

• reviewing the provision of maternity leave, including the assessment of the restraints on women taking maternity leave, for the purpose of removing such hindrances;

• seeking by way of test cases before the Australian Conciliation and Arbitration Commission wage justice for employees in predominantly female occupations.  For example, significant wage gains have been achieved in recent years in the nursing, textile and clothing industries and in the lower-graded clerical areas of the Australian Public Service – traditional high female employment areas.  The document Women Workers: The Effect of the Two-Tiered Wage System, produced by the ACTU in July 1988, is a useful source of information concerning the recent, considerable wage improvements in many areas of predominantly female employment – won as a result of union activities;

• extending superannuation coverage and ensuring appropriate and fair guidelines are issued and applied by the regulatory authorities.  Research has shown that female employees are only half as likely as male employees to be covered by superannuation schemes.  Further, many such schemes discriminate against female employees;

• supporting the development of the affirmative action pilot programmes; although unions have been critical of the lack of consultation by many participating companies with the unions covering employees affected concerning the aims, priorities and method of evaluation of such programmes;

• increasing the number of courses organised through TUTA including courses dealing with the issues of comparative worth, equal employment opportunity programmes and affirmative action.  The Labor Council and the ACTU have also insisted that information relating to women in the workforce be included in all appropriate courses at the State and National levels;

• devoting special attention to the occupational health and safety issues relevant to women workers.  For example, it is frequently argued that weight lifting restrictions discriminate against the employment of women workers and that such discrimination should be eliminated.  The ACTU has pursued this matter with the National Occupational Health and Safety Commission with a view to drafting proposals on how problems in this area might be resolved.  Unfortunately, some employers have adopted an unhelpful and reactionary position on this matter.  In contrast, the unions position is that the resolution of this issue requires an approach based on occupational health and safety needs.  Elimination of discrimination in this area should not lead to the undesirable consequence that weight lifting limits are eliminated or unsafely increased for female workers;

• encouraging equality of opportunity in various industries, which have traditionally employed low percentages of female workers.  Thus, the ACTU has been involved in insisting that industry-wide policy development, including labour market training, should be linked to the aim of bringing about a more equitable distribution of women throughout the entire workforce.

From this outline, it is unquestionably the case that, particularly in the last seven years, the union movement has been at the forefront of the pursuit of women’s equality and the elimination of unfair sex discrimination.

The union movement, which was responsible for the victories in the Equal Pay Cases of 1969 to 1973 is continuing to build on the gains achieved at that time.

3.    Anti-Discrimination Legislation

The following is a critical summary of existing equal employment and anti-discrimination legislation in the context of employment:

The Sex Discrimination Act:  Provides a wide range of remedies against sex discrimination in employment which may be dealt with through the Anti-Discrimination Board as an agency of the Human Rights Commission.

The Anti-Discrimination Act:  Renders unlawful racial, sex and other specified types of discrimination in certain circumstances (including employment) and aims to promote equality of opportunity between all persons.  Part IX A of the Act specifically deals with Equal Opportunity in Public Employment.

The Industrial Arbitration Act:  Whilst not dealing specifically with discrimination or equal employment opportunity questions, the legislation does in fact cover such issues in the context of industrial matters, disputes, award making, wage fixing, etc.

However, there are many deficiencies in existing State legislation, namely:-

The Anti-Discrimination Act:

• does not cover certain employment situations

• less than five employees,
• private educational authorities;

• does not cover acts done in compliance with the requirements of other Acts (e.g. the Public Sector Management Act, the Industrial Arbitration Act);

• does not cover awards/agreements etc;

• costs can be considerable;

• remedies only available to individuals, ‘class actions’ are not available.  Thus, whilst an individual is able to remedy discrimination in employment (in certain circumstances), no change is necessarily reflected in the wider employment situation; and

• in spite of s.108, highly legalistic approaches to cases before the Equal Opportunity Tribunal are prevalent.

The Industrial Arbitration Act:

• does not specifically define discrimination (or exclude it) as an industrial matter nor does it specifically deal with sexual harassment;

• does not provide for damages to be awarded (as does the Anti-Discrimination Act) for unfair dismissals or where reinstatement is not practicable; and

• only covers members of unions (and individuals in s.88F situations).

The Labor Council policy is that a review of the New South Wales industrial system should take place in order that complaints based on discrimination be properly dealt with, that the system work toward the elimination of unfair discrimination in employment and adopt the principles of equal opportunity.

The following commentary is taken from the Labor Council Policy –

The potential for disruption and confusion in industrial relations is always heightened when persons without sufficient industrial expertise become involved in industrial matters.  This is notwithstanding the expertise and commitment in other fields such persons may have.

It is the long-settled view of the labour movement and, increasingly, the view of the courts, government and employers that events at the workplace are primarily industrial matters and should be handled as such.

For that reason, Labor Council believes that discrimination in employment is an industrial matter: it affects, or has the potential to affect all workers, whether because of sex, race, disability or age, and it affects them as workers.  Accordingly, the appropriate bodies to deal with such problems are unions and the appropriate forum to solve such complaints is the Industrial Commission.

For this reason, Labor Council believes that any industrial matter, as defined in the Industrial Arbitration Act, should not be within the jurisdiction of the Equal Opportunity Tribunal and that the Anti-Discrimination Act should be amended accordingly.

A review of the Industrial Arbitration Act and the industrial system should be undertaken to ensure that the complaints based on discrimination are properly dealt with including the provision for the awarding of compensation, including compensation in reinstatement cases.

The Equal Opportunity Tribunal should retain its powers to order damages and those powers should be in line with the District Court – $100,000.

The major aims of any review should be: a) to implement changes to the New South Wales industrial system to enable it to work towards the elimination of unfair discrimination in employment; b) to enable disputes related to or springing from matters of discrimination in employment to be resolved within the industrial system; and c) to eliminate the need for and the existence of avenues of complaint outside the industrial system, therefore eliminating the potential conflicts arising from decisions imposed upon the industrial system by those who do not have the relevant industrial expertise.

Outlined below are arguments justifying and elaborating on Labor Council policy.  Obviously, the Labor Council would prefer one jurisdiction in New South Wales dealing with discrimination in employment situations.  But if such a proposition does not find favour with the present government, that, in itself, is no excuse for governmental lethargy and inactivity with respect to industrial law and regulation.

4.    Proposals For Changes to Anti-Discrimination Legislation

The major aims of the Labor Council proposals are:

• to implement changes to the industrial system to enable it to work towards the elimination of unfair discrimination in employment; and

• to enable disputes related to or springing from matters of discrimination in employment to be resolved within the industrial system.

The Labor Council also submits that there is a need to eliminate the existence of avenues of complaint of discrimination in employment outside the industrial system and, therefore, eliminate the potential conflicts arising from decisions imposed upon the industrial system by persons outside the system who do not have the relevant industrial expertise.  At the same time, the Labor Council recognises the value to date of the work of the Anti-Discrimination Board and other agencies and the continuing important of activities in a wide range of areas by such organisations.

Some important points to recognise are that:-

• the Anti-Discrimination Board will always be limited in its effect on the industrial relations system and the parties by its existence outside the system and the lack of involvement of these major parties in that jurisdiction;

• permanent change can more effectively be made if the parties have the onus of responsibility for the change and are involved in the change; and

• the Anti-Discrimination Act (except for Part IX A) provides for an ‘after the event’ complaint system which relies on the individual to lodge a complaint.

If the Labor Council’s proposals are adopted, this would leave the Anti-Discrimination Board and the Equal Opportunity Tribunal with the powers to deal with discrimination on the grounds of sex, marital status, race, physical impairment, intellectual impairment and homosexuality in the areas of:-

• partnerships;
• trade unions;
• qualifying bodies;
• employment agencies;
• education;
• provision of services;
• accommodation; and
• registered clubs

except where it involves a direct employment relationship.  The Labor Council also supports an amendment to the Anti-Discrimination Act to allow the monitoring and appropriate action against discriminatory and unfair job advertisements.

Further, the Labor Council believes that the Anti-Discrimination Act should be amended to allow awards of damages to $100,000 (compared to the current level of $40,000).

It should be reiterated that these proposals are not an attack upon the Anti-Discrimination Board but rather a commitment to have the industrial system adapt to anti-discrimination and equal opportunity issues, incorporating appropriate procedures into the everyday functions of the system.  This is clearly the most practical, inexpensive and constructive way for the original intentions of the legislation (i.e. the elimination of all forms of discrimination in employment) to be fulfilled.

Specifically, the Labor Council proposes the following amendments to the legislation:

a)    The Anti-Discrimination Act

• The Act should be amended to ensure the right of a union to intervene in matters before Equal Opportunity Tribunal having effect on members in the workplace.

• Part IX A of the Anti-Discrimination Act should be embodied in the Industrial Arbitration Act (concerning equal employment opportunity in the public sector), with the provision that there be a) a requirement to consult with unions; b) that unions have the right to process any disputes through the Industrial Commission; and c) cover all areas of State public sector employment.

• The damages ceiling under the Act should preferably be removed or at least increased to $100,000.

• The Act should be amended by the inclusion of a ‘needs’ provision, similar to s.33 of the Sex Discrimination Act to effect protection for programmes, policies and procedures whose purpose and effect is to produce equality, or to redress past discrimination.

b)    The Industrial Arbitration Act

The Industrial Arbitration Act already requires the Industrial Commission to be governed in its procedure and decisions by ‘equity and good conscience’ and not be bound by the rules of evidence (s.83 – equivalent to s.108 of the Anti-Discrimination Act).  Its method of operation is structured on informality, relative speediness of dealing with matters, particularly disputes, and with members of the Commission/Commissioners able to look at each case on its merits and able to inquire into any matter in the industry or calling before it.

This equitable and more informal jurisdiction would be potentially an ideal venue to ‘mainstream’ issues relating to discrimination and equal employment opportunity in the workplace and deal with issues of unfairness or inequity in employment all its forms.  However, to achieve this the following should be done:

• ‘Industrial matters’ (s.5) should be specifically amended to cover discrimination, sexual harassment and equal employment opportunity.

• Specific reference needs to be made in s.5 ‘industrial matters’ to include equal pay, equality of employment, conditions, etc. and this to be reflected in the relevant sections dealing with powers of members of the Commission and Commissioners (and Committees), etc.

• Section 20A should be amended in line with the Australian Conciliation and Arbitration Commission’s provisions as per the Technological Change and Redundancy Case:-

Unfair Dismissal

(d)(iv)  Termination of employment by an employer shall not be harsh, unjust or unreasonable.

For the purpose of this clause termination of employment shall include terminations with or without notice.

Without limiting the above, except where a distinction, exclusion, or preference is based on the inherent requirements of a particular position, termination on the grounds of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment.

• Amend the Act such that compensatory payment may be awarded (at the discretion of a member of the Commission or Commissioners) where loss or damage is suffered by an employee who has been unfairly terminated and/or where reinstatement of such employee cannot practicably be effected (job abolished, problems re-establishing employer/employee relationship, etc.).  No ceiling should be placed on the amount of compensatory payment.

• Amend s.25(5) by adding a provision for interim orders to be given where there is a threatened termination (or transfer) to preserve the status quo whilst the matter is conciliated and/or arbitrated.  (The current s.25(5) only provides for interim orders ‘in the public interest’ – this is too narrow.)

• Amend sections 53-59 to remove reference to females (basic wage, minimum wages etc).

• Amend the Act such that, in the performance of its functions, the Industrial Commission shall be required to take account of principles embodied in anti-discrimination legislation.

• Amend the Industrial Arbitration Act to delete discriminatory wording/references.

• Amend s.153 by adding a new provision providing for adoption leave.

c)    Supportive Proposals

• Appointment of more female members of the Commission and Commissioners.

• The government should monitor the mechanisms for dealing with complaints of unfair discrimination at work to ensure that such procedures are streamlined, simple and effective for both union members and non-union members.

• The Department of Industrial Relations and Employment (including, of course, its Women’s Directorate) should become pro-active in the area of equal employment opportunity including, where appropriate, counselling and training programmes.  Consideration should be given to the appointment of mediators employed by the Department to resolve certain conflict situations.

• The Department should also aim to implement programmes to influence all the parties to the industrial system so they will be better equipped to deal with complaints of unfair discrimination in employment and so they will work toward the eventual elimination of such discrimination.

5.     Arguments For and Against Such Proposals

Unfortunately, the Labor Council’s good intentions have not been universally accepted.

The main reasons advanced against the Labor Council’s proposals are that the Anti-Discrimination Act serves a worthwhile purpose, that discrimination in employment cases dealt with through this legislation have assisted in the elimination of discrimination thereby justifying the Equal Opportunity Tribunal continuing its current responsibilities (with provision for unions to file complaints), that the industrial relations system has a bad record in overcoming unfair discrimination, and to transfer powers from the Anti-Discrimination Act to the Industrial Arbitration Act would be to hand over powers to a jurisdiction less competent or willing to effectively deal with cases of discrimination, that there are conflicts where one unionist complains of discriminatory treatment by another worker who may be a unionist and thereby the union may not take up the cudgels in defence of the discriminated worker, finally that the Anti-Discrimination Act places emphasis on conciliation and public education which would be lost or diluted if employment matters were transferred to the industrial system.

It has also been suggested that, on the part of some, fear of losing a bureaucratic empire also motivates opposition to the proposed changes.  This is an argument which the Labor Council does not embrace.  The Labor Council is certain that nothing could be further from the truth and that the reasons for opposition are mainly those stated above.

It is worthwhile examining the abovementioned objections, one by one.  In doing so, it is important to bear in mind the question: ‘What is in the best interests of eliminating unfair discrimination in employment?’

First, there is no doubt that, as whole, the Anti-Discrimination Act has served a worthwhile purpose and that certain actions arising from this jurisdiction have concentrated the minds of the parties in the employment area on questions of unfair discrimination.

It is also the case, though, that public attitudes have changed and are relevant to the acceptability of legislation and procedures to prevent discrimination.

The Labor Council is not proposing the abolition of the Anti-Discrimination Board – it is constructively proposing amendments to existing legislation and changes in the industrial relations system aimed at overcoming barriers to equality in employment.

Second, the Labor Council’s view, which reflects that of the vast majority of unions in New South Wales, is that the issue of discrimination in employment should be a mainstream industrial matter, dealt with through the industrial system and that legislation covering discrimination in employment should be covered in one New South Wales Act.  It is an argument based on providing the most effective way of fighting unfair discrimination.

Third, the so-called bad record of the industrial relations system concerning discrimination of women workers may be an interesting fact but to harp on this point is to support a theory of atavistic guilt.

The issue in 1988 is whether the system can be amended and improved.  It is the Labor Council’s view that it can.  Labor Council policies, aimed at reforming the New South Wales industrial system to give greater emphasis on conciliation of disputes, provide an excellent opportunity to also insist that amendments be carried which will lead to conciliation of and jurisdiction over employment discrimination matters.

Fourth, conflicts concerning the utility of taking up particular cases within the industrial system are a fact of life.  All unions are involved in considering reinstatement cases, many of which involve conflicts between unionists.  It should be noted that the Labor Council is proposing that if a union unfairly fails to take up a case, on grounds outlawed in the Anti-Discrimination Act, legal remedies, as discussed earlier, will be available.  In addition, the Labor Council supports the idea that mediators, engaged by the Department of Industrial Relations and Employment, might deal with particular cases.

Fifth, the Labor Council’s proposals are not simply legally based.  The Labor Council is proposing changes to the Department of Industrial Relations and Employment Inspectorate in order to improve its efficiency and ability to deal with all industrial issues, including discrimination in employment questions.  Married to these proposals is the need for training programmes for unions, employers and the parties involved, including the inspectors, concerning the implementation of the proposals.

Hopefully, these points will put to rest some of the more sensational allegations advanced against the Labor Council’s position.

6.    Other Industrial Legislation

The Factories, Shops and Industries Act

The sections in industrial legislation of key concern are those provisions establishing discriminatory treatment of men and women workers.  The sections in question are usually designed to afford special occupational health and safety protection for women workers.

For example, the Factories, Shops and Industries Act provides a 16kg limit on the weights that adult women workers can handle – but no limit on the weights men can handle.  This provision is often used by employers to discriminate against women in certain areas of work.  On the other hand, it discriminates against men by expecting them to handle unlimited weights.

Labor Council policy comments that the:

Labor Council notes the discriminatory effect of not establishing weight limits for adult males, which simultaneously exposes males to unacceptably high rates of injury, while reducing employment opportunities for women and juniors.

Present legislation provides a disincentive to employ women and juniors, and Labor Council is concerned that with regard to manual handling, the Draft National Code of Practice of the Occupational Health and Safety Commission omits juniors.

Labor Council asserts that adult male working conditions should be brought into line with women and juniors whilst insisting on retention of their protective lifting limits.

Simple elimination of protective provisions would effectively disadvantage all workers and deprive women workers of valuable occupational health and safety protection.  It is important to review the discriminatory impact of ‘protective’ legislation while, at the same time, bearing occupational health and safety issues in mind.

The mainstreaming of discrimination as an employment issue in the Industrial Arbitration Act and under the umbrella of the Department of Industrial Relations and Employment would bring health, safety and discrimination issues together, remove the overlap and have them as closely-related issues handled under the one system.

Therefore, the Labor Council proposes that there be deletions/amendments where necessary to remove discriminatory wording and sections in industrial legislation such as the Factories, Shops and Industries Act.  Further, that the requirements of the Occupational Health and Safety Act be observed in any such review.

Awards and Industrial Agreements

Provisions still exist in some awards and agreements which discriminate against some workers – particularly on the ground of sex.  Therefore, the Labor Council proposes that the government should act to delete/amend where necessary discriminatory wording and clauses in State awards and agreements.  Such changes should not operate to the detriment of women workers, particularly in the area of occupational health and safety.

7.     Maternity, Adoption and Family Leave

Maternity Leave

The current legislative provisions under the Industrial Arbitration (Amendment) Act place onerous obligations on women workers – particularly with respect to notice requirements.

The Labor Council submits that the maternity leave provisions in the Industrial Arbitration Act should be amended in line with the recommendations of the Labor Council Working Women’s Charter Committee (see full text of recommendations in Appendix 1).

Adoption Leave

The Labor Council is concerned that there is no legislative provision at the State level for proceeding on adoption leave.

The Labor Council submits that there should be amendments to the Industrial Arbitration Act to include adoption leave as per the decision of the Australian Conciliation and Arbitration Commission in the ACTU-initiated adoption leave case, including non-discriminatory variation for males as well as females.

Family Leave

The Labor Council is concerned with the plight of workers with family responsibilities who are subject to anxiety and stress and, in some cases, the loss of employment when these responsibilities conflict with their employment contracts.

The Labor Council submits that workers should have access to legitimate leave for such purposes.  Moreover, there should be ratification of ILO Convention 156 concerning workers with family responsibilities (see Appendix 2).

8.    Migrant Workers

The Labor Council notes that, to date, most migrant workers do not have the right to attend English classes during working hours.

The Labor Council submits that avenues such as award variations, legislation and employer subsidy schemes should be investigated to facilitate the right to learn English at the workplace during work hours and without loss of pay.  (On issues relating to migrant workers, see also section 2 of the chapter Labour Market Deregulation and Labour Market Flexibility.)

9.    Affirmative Action

The Labor Council recognises that the New South Wales government has a major role in supporting equal employment opportunity measures, including sensible affirmative action measures, both in the private and public sectors.

The Labor Council notes that not all areas of public employment are covered by Part IX A of the Anti-Discrimination Act concerning the implementation of equal employment opportunity in the State public sector.  This anomaly should be rectified by legislative amendment under the revised Industrial Arbitration Act.

In addition, the Labor Council supports amendments to the Anti-Discrimination Act to include a ‘needs’ provision, similar to s.33 of the Sex Discrimination Act to effect protection for programmes, policies and procedures whose purpose and effect is to produce equality, or to redress past discrimination.

10.  Age Discrimination

The Labor Council believes, as a matter of principle, that employees should not be forced to resign or be dismissed from employment prior to, or because of, eligibility for the aged pension.

Appropriate amendments should be made to the Industrial Arbitration Act and the Public Sector Management Act such that it would be unlawful for an employer to dismiss or force an employee to resign at a particular age unless there is an express retirement age provided for in the award, industrial agreement or legislation.  Such legislation should not discriminate between males and females.

State public servants should have the option of retiring up to age 65, couples with a legislative right of appeal from a decision to refuse to allow the continuation of employment under the relevant employment legislation.

Further, unfair discrimination in job advertisements on the basis of age should be prohibited unless there is a specific age requirement for the specific position covered by an award, industrial agreement or legislation.

11.   Supported Employment

The Labor Council endorses the principle of equal pay for work of equal value for disabled workers, although difficulties are recognised where disabled workers are unable to work at comparable rates to non-disabled workers.

The Labor Council welcomes the recent Disability Services Act and recommends that there should be investigation and review of different methods and approaches to provide access for disabled workers into open employment.

12.   Conclusion

This paper has aimed to fairly and adequately summarise the case marshalled by the Labor Council, the ACTU and unions generally in combatting unfair discrimination in employment.

To paraphrase R.H. Tawney out of context, it is idle for an organisation to emblazon ‘An Equal Employment Opportunity Employer’ or other resounding affirmation on its stationary, if to display the same motto over its offices and factories would arouse only the cynical laughter that greets a reminder of idealism turned sour and hopes unfulfilled.

The aim of the union movement is to realise such hopes and conquer the causes of inequality and discrimination.  This should also be an objective of the New South Wales industrial system.  The adoption of the proposals argued for in this chapter would see the realisation of such goals.

1.     Introduction

The stated purpose of industrial law, at the State and Federal levels, includes the formation of representative bodies and the encouragement of dispute settlement by negotiation and agreement.  What has been less definite is whether organisations and individuals should be restrained by the law – and if so, from using duress in support of their demands.

The laws applying at the State level concerning industrial action are legion: their combined effect gives rise to a complex series of prohibitions and penalties.  Quite apart from the variety of common law ‘industrial tort’ actions, specific provisions concerning industrial action are found in the Industrial Arbitration Act 1940, the Energy Administration Act 1988, the Essential Services Act 1988 and the Crimes Act (NSW) 1900.  At the Federal level, the principal statute affecting State-registered unions is, of course, the Trade Practices Act 1977.

The Labor Council believes that the use of legal sanctions against unions and union members in relation to industrial matters is a counter-productive use of law in industrial relations.  The use of knee-jerk legalistic responses can only exacerbate industrial disputes – and the industrial relations climate is permanently soured.  It is clear that one cannot legislate good industrial relations.  Thus, what legislative change should be addressing is not the question of sanctions alone but, rather, how the system can be developed to win the support and commitment of the parties.

It should also be noted that in the period since 1983, strike levels have substantially declined (see Beggs, J.J. and Chapman, B.J. ‘Australian Strike Activity in an International Context’ op.cit.), with most of the decline due to the Accord processes.  The reality is that there is overwhelming compliance with the guidelines of the Federal and New South Wales industrial tribunals and responsible activity by unions.  It is in this context that arguments about sanctions and changes to the existing arrangements should be judged.

It is our submission that the checks and balances within the conciliation and arbitration system, without resort to extra legal sanctions, are adequate to enable that system to provide a means for the prevention and settlement of industrial disputes and to foster better industrial relations.  Apart from the union movement’s traditional abhorrence to the availability of civil remedies in relation to industrial action, there is an intellectually respectable case to be made out for a more autonomous approach to labour law, i.e. to separate the law governing industrial conflict from the mainstream of the common law and from the ordinary courts.  The great English academic, Lord Wedderburn, has argued that “The call for a modern labour law is indeed a call for its autonomy” (Labour Law: From Here To Autonomy? (1987) 16 ILJ 1 at 19).

We also note and endorse the following comments made by the ACTU in its submission to The Committee of Review into Australian Industrial Relations and Systems (at p. 48):

• The role assigned to legal sanctions is an important indicia of the overall approach to industrial relations and the type of industrial relations climate that is sought to be established.  The confrontationist approach involves heavy reliance on legal sanctions in order to ‘coerce’ the parties; the consensus approach involves reliance on other means to ‘win’ the support and commitment of the parties for particular policies and resolutions.  In the view of the ACTU, the confrontationist approach is short-sighted and, in a democratic nation, bound to fail.

• The right to take industrial action is a fundamental human and trade union right recognised in international standards (e.g. by ILO Conventions) which have been adopted by Australia.  Legal sanctions which seek to take away this right are therefore contrary to Australia’s obligations under such international standards and to fundamental rights.

• The union movement is completely opposed to the use of legal sanctions against unions and unions in the course of industrial disputes…Legal sanctions that are directed towards limiting the power of unions to represent effectively the working men and women of Australia will never be accepted by the union movement.

• The experience in this county has been that conciliation and arbitration can and does operate effectively without legal sanctions… the approach embodied in the Prices and Income Accord has proved much more valuable to the conciliation and arbitration system, to good industrial relations and to the community than any reliance on legal sanctions.

• Where legal sanctions have been used in recent years in Australia, they have demonstrated their potential for exacerbating the industrial relations climate that is not conducive to industrial progress or development.  Experience shows that the application of sanctions does not resolve industrial disputes because sanction proceedings do not deal with the issues in dispute (emphasis added).  Such proceedings merely focus attention on a manifestation of a dispute – namely, the taking of industrial action.

2.    Compliance

While fully endorsing the above comments, the Labor Council also recognises that questions relating to matters of compliance, sanctions and other avenues of legal recourse are a factor in industrial relations and will no doubt continue to form part of the industrial agenda in this State.

2.1.   The Industrial Relations Bill 1987

In considering the question of compliance, mention should be made with respect to the original Industrial Relations Bill introduced to the Federal Parliament in May 1987.  While there were certain aspects of the Bill giving rise to concern for the union movement, the legislation did attempt to introduce a rational and equitable system of compliance.

The Bill quite properly placed chief emphasis upon the resolution of disputes by industrial tribunals through the processes of conciliation and arbitration, coupled with the necessary powers to enforce arbitrated outcomes.  In doing so, the Bill represented a serious attempt to adopt a more integrated and internally consistent approach to industrial relations in Australia and is to be commended in that respect.

It is regrettable, form an Australian industrial relations perspective that the Bill was deferred – largely as a result of employer reaction to the government’s attempt to limit the operation of ss.45D and 45E of the Trade Practices Act and common law liability as a quid pro quo for the incorporation of new enforcement within the conciliation and arbitration system.

Recommendations on the issue of compliance will invariably emerge from the Green Paper.  The Labor Council submits that, in point of principle, it is strongly arguable that specialist industrial tribunals should make critical decisions going to questions of compliance in New South Wales.  This has certainly been the traditional function of the Industrial Commission of New South Wales (a superior court of record) which commonly deals with the complex causes and results of industrial disputes.

The Labor Council submits it is clearly preferable and consistent that a greater coherence be given to the legislative infrastructure underlying the compliance aspects of the centralised system of conciliation and arbitration.  Following from this proposition, consideration should be given to consolidating the role of the Industrial Commission as the critical decision maker in this respect, to the exclusion of other avenues of recourse which are currently available within the New South Wales jurisdiction.  If there are to be sanctions, it is clear that they should be exercisable within the industrial system, and by industrial tribunals only.

2.2.   Illegal Strikes

The philosophy and aim of State and Federal industrial legislation governing centralised conciliation and arbitration when it was first enacted was to abolish the occurrence of industrial action on the part of employees and lock outs on the part of employers: hence the existence of provisions in the Industrial Arbitration Act declaring strike action to be generally illegal.  It is patently ludicrous to have a blanket provision outlawing strike; yet such are the archaic provisions found in New South Wales legislation.

The concept of illegal strikes, found in section 99-101B of the Industrial Arbitration Act, is a hangover from the nineteenth century and reflects the anti-union bias of the law at that time.  The Labor Council asserts the legitimacy of the right to withhold labour or to impose limitations on the performance of work and calls for the repeal of such provisions.

2.3.   De-registration

The union movement has generally been opposed to the use of de-registration proceedings as a sanction against unions engaging in industrial action.  The reasons for such opposition include the following:

1. the union movement has never accepted the proposition that by gaining access to a centralised system of conciliation and arbitration that this cancels the right to take industrial action in respect of legitimate occupational pursuits;

• it may be contradictory to de-register a union for engaging in industrial action whereby, in doing so, the particular union is placed outside the system – and, therefore, beyond and beneficial influence and control of industrial tribunals;

• the de-registration of a union may have the effect of penalising/prejudicing all members when only a small number may have engaged in conduct leading to de-registration.

Whilst the union movement is formally opposed to the penalty of de-registration, in so far as it is considered desirable that such provisions should remain in the Act, the existing section should be modified.  The current basis for de-registration – namely, on the basis of “any reasons which appear to (the Industrial Commission) to be good” – is far too broad.  The Act should be amended to include:

• a limitation on de-registration solely or principally being grounded upon industrial action concerning a dispute or disputes in progress or dispute(s) recently-resolved;

• the only grounds for de-registration (aside from administrative reasons such as where a defunct union is involved) should be where a union shows, over a significant period of time, an unwillingness to operate within the rules and spirit of the conciliation and arbitration system; and

• the requirement that the Industrial Commission consider and give due weight to the views of the Labor Council on the proposed de-registration.

Sections 113-114 of the Act concerning stop-orders and winding-up of unions have as their only purpose, the destruction of a union’s power to operate within the system of conciliation and arbitration; such a course of action runs counter to the purpose of a centralised system and cannot, therefore, be justified as an industrial relations ‘tool’.

3.    Civil Actions

The Labor Council and the union movement as a whole, are totally opposed to the availability of civil actions in respect of industrial action.  Apart from proceedings pursuant to the Federal Trade Practices Act, which the union movement is opposed to, there are some civil proceedings arising from the law of tort which may result from situations involving industrial interference with contractual relations.  Brain Brooks in Contract of Employment (p. 269) summarises the law as follows:-

1. the union or any union official or member calling a strike and thereby inducing the members of the union to breach their contracts of employment is liable in damages to the employer;

• the union or any union official or member threatening to call a strike… commits the tort of intimidation, and if the threat compels the employer to act to his disadvantage, then the employer can sue for the damage suffered;

• the union or any union official or member threatening to call a strike, and thereby compelling the employer to break or lawfully terminate a contract, between the employer and a third party, can be sued by the third party for the damage he suffers.  It follows that the employer could also sue if he suffers damage;

• union members who agree among themselves to strike in breach of a no-strike clause in their contracts of employment may be liable for the tort of conspiracy;

• action taken in a civil court could lead to an injunction enjoining the defendant party from continuing his allegedly tortious act and for damages, both general and exemplary.  Costs could be awarded against the defendant in both cases; and

• ‘sit ins’ and ‘work ins’ may result in the employer suing for trespass.

In Australia (unlike in Britain where such actions had their genesis), our law developed compulsory arbitration systems which were, to a large extent, intended to make ‘industrial torts’ law redundant.  Instead of dealing with a narrow legal concept, as a common law court is required to do, industrial tribunals can and do deal with the (often extremely complex) causes of the dispute, rather than merely dealing with the symptoms.

Moreover, when considering circumstances in which civil actions may be used, it is particularly relevant to bear in mind that employers and employees are parties to a continuing relationship.  Although industrial action may involve a temporary abandonment of that relationship, it is rekindled when such action ceases.  This is a vital consideration which does not occur in the same way with most litigants before the court system at large.

3.1.   Immunity from Action in Tort

The Labor Council is of the view that civil proceedings present a barrier to the orderly processes of conciliation and arbitration of industrial disputes.  Consistent with this view, the Labor Council considers that there should be legislative immunity for unions, their officials and their members against common law actions in respect of industrial action.

Such legislation would not be novel.  Legislation offering immunity from tort action was in place in Britain from 1906 (the Trade Disputes Act).  Similar legislation was also in place in Queensland from that time.  Reasons supporting such immunity include the following:

• civil liability effectively proscribes the right to engage in industrial action;

• the use of civil actions does nothing to resolve the problems which are at the heart of industrial conflict or to promote industrial harmony – rather, such actions exacerbate conflict;

• the civil courts are not properly geared towards, nor sensitive to, important aspects of industrial relations: “The common law has great difficulty in drawing the line between pressure normal to negotiations and pressure which is actionable” (Brooks, op. cit. at p.270);

• there is an inconsistency between the provision of machinery for the prevention and settlement of disputes, and allowing continued access to the ordinary courts system.  Civil actions not only undermine the role of industrial tribunals, but represent (in terms of the costs and time) a wasteful allocation of society’s resources.

3.2.   The Industrial Arbitration (Industrial Torts) Amendment Bill

Most industrial practitioners wholeheartedly concur in the view that the use of civil actions is simply not a rational or suitable way to handle industrial disputes.  If such actions are seen as desirable (and the Labor Council in no way suggests they are), it is clear that they should be available only after bona fide attempts have been made to resolve the matter in an industrial tribunal.

It is the clearly established policy of industrial tribunals that the processes of conciliation be exhausted before an arbitrated decision.  If these highly questionable common law actions in respect of industrial action are retained, we submit in so far as such remedies are seen as desirable, that such a concept could also be extended to embrace civil litigation in the following ways:

• by consolidating the functions of the Industrial Commission, so that matters going to compliance could be considered alongside the conciliation and arbitration functions (see above, Compliance); or

• by preventing civil courts from dealing with any such matters until after the ordinary processes of conciliation and arbitration have been fully explored and exhausted by industrial tribunals.

In respect to the second option, the Labor Council supported the Industrial Arbitration (Industrial Torts) Amendment Bill introduced into the Legislative Assembly in December 1986.  The reasons for such support included the following:

• it would have assisted in expeditiously resolving complex matters which are properly characterised as industrial disputes;

• it would be eliminated vexatious actions in tort;

• it would have ensured that unions’ and employers’ funds were not wasted on civil litigation when the matters could more appropriately have been handled by the existing industrial machinery;

• it would have ensured that the present system of compulsory conciliation and arbitration in this State is not undermined by the law of tort in industrial disputes; and

• it would have ensured that the common law courts are not inconvenienced in having to determine what are, after all, essentially matters of industrial relations.

Much has been made of the Mudginberri, Dollar Sweets and Robe River disputes in respect to the use of civil actions, so brief comments on these cases is warranted:

Mudginberri:  The Mudginberri dispute involved injunctions and fines for contempt of court against the Australasian Meat Industry Employees’ Union for failing to remove a picket.  But the action was taken under Federal Law, namely the Trade Practices Act.  Given the operation of the Australian Constitution, State Parliaments cannot legislate to impinge upon the operation of such legislation.

Dollar Sweets:  The Dollar Sweets dispute continued for five months until a judge of the Supreme Court of Victoria issued an injunction to prevent picketing by members of the Federated Confectioners’ Association.  The picketing had continued notwithstanding orders to the contrary from the Conciliation and Arbitration Commission.  One newspaper editorial commented at the time that:

The changes to the Industrial Arbitration Act (proposed by the Bill) are obviously aimed at preventing a repeat of the Mudginberri Abbatoirs dispute in the Northern Territory and the Dollar Sweets row in Victoria. (Daily Telegraph, 21 November, 1986).

The editorial comment in relation to preventing a repeat of the Dollar Sweets row is correct, but, we would submit, not in the way the Daily Telegraph asserted.  The Labor Council does not want to see a repetition of any such dispute lasting for several months.  However, those who criticized the Bill missed the point that it would have been inconceivable for the Industrial Commission to refuse leave to an employer facing five months of union picketing against an order banning such activity.

Robe River:  The catalyst of the Robe River dispute – the issue of work practices – was all but obscured in a confrontation which was seen by many commentators as a test by the ‘New Right’ against unions.  Pamela Williams in ‘Robe River: How not to Take on a Union’ (Business Review Weekly, 23 January, 1987) commented:

Ironically, Robe only got what it wanted after the [West Australian Industrial Relations] Commission heard the issues and ruled that the company could make most of the changes to restrictive work practices it had tried to bring about by confrontation..

…Some observers, veterans of battles in the Pilbara, say trust will not return at Robe…They say Robe’s tactics have gutted the friendships, in two friendly little mining towns and the hatred of the company will take 20 years to dissipate.  The last straw, for these people, was the company’s threat of legal action against trade union officials workers and, in one case, a person who, the company alleges, incited workers to breach their contracts of employment.

..[Charles] Copeman said: ‘The Robe River dispute illustrates vividly that what is at stake is – like it or not – essentially political…  There can be no sanitised distinction between industrial relations and the polarised politics we have in Australia.’  Copeman made no secret of the fact that he is a member of small right-wing group of industrial relations activists which is dedicated to replacing the arbitration system and the trade union tradition with a system of decentralised collective bargaining, enforceable by law.  The group see Robe as part of a domino theory.  It is significant, however, that despite the Mudginberri, Dollar Sweets and SEQEB disputes being touted as milestones for management prerogative, there has been no sudden wave of employers following the pace-setters.

..Some of the theories of the New Right have.. been tested at Robe and found wanting…In the final analysis, Robe has demonstrated that disputes can only be resolved when people sit down and talk. (emphasis added).

The Labor Council considers that it is more appropriately the function of industrial tribunals to seek ways of settling industrial disputes and they are more competent to know the prospects of a particular dispute being settled.  This view has been espoused by Mr. Justice Street (as he was then), as far as injunctive relief in respect to an industrial dispute:

But, in point of discretion, it is a well settled approach in this court that injunctive relief will not ordinarily be granted where it can be seen that there is another tribunal particularly suited to deal with the matter in issue and having the requisite power and authority to resolve the issues between the parties.  Harry M. Miller Attractions Pty. Ltd. and Ors v Actors and Announcers Equity Association of Australia and Another (1970 NSWR 614).

The point to be made is that the Industrial Arbitration (Industrial Torts) Amendment Bill, if passed, would have formalised a procedure that usually does (indeed should) take place in most disputes – whether they be of a civil or industrial nature, i.e. genuine attempts should be made by the parties for a negotiated settlement before the matter proceeds in court.  The Bill clearly did not deny the employers the right to take common law action – it required only that the Industrial Commission hear the matter first.  Moreover, the Bill did not hinder civil court actions for assaults on persons, damage to property, etc.

The union movement has always been of the view that the use of civil actions in relation to the workplace is industrially repugnant, and we do not resile from that view.  However, if, as appears likely, such legal avenues are retained, the Labor Council submits there is compelling industrial relations justification for statute-barring civil actions until the due processes of conciliation and arbitration have been utilised to the fullest.

3.3.   Effect of the Industrial Relations Bill on State Laws

In relation to any proposed legislative change to expand civil litigation avenues at the State level, we note that the Industrial Relations Bill 1988 includes provisions to oust State legislation which seeks to intrude into areas already covered by Federal law, namely:

• clause 164 overrides State laws in relation to ‘boycott conduct’ – basically contraventions of ss.45D and 45E of the Trade Practices Act;

• clause 165 overrides State laws in respect of industrial action in relation to public sector employment where there has already been an order under cl.127 (s.60J); and

• clause 166 overrides State laws in relation to conduct that constitutes a breach of a bans clause.

4.    Essential Services Legislation

The Labor Council is totally opposed to any form of legislation removing the individual or collective right to withdraw labour and calls for the repeal of such legislation.  However, such legislation is an historical and present day fact, particularly in the area of ‘essential services’, with special provisions found in the Industrial Arbitration Act (1940) as well as specific statutes, namely the Energy Administration Act (1988) and the Essential Services Act (1988).

4.1.   The Industrial Arbitration Act

Section 8A of the Industrial Arbitration Act deals with the cancellation of registration where the union is engaged in a strike in an “essential service” industry.  Essential service industry is defined in the section and the power to order the cancellation of registration is given to the Industrial Commission.  The Commission is given alternate powers pursuant to s.8B.  These alternate powers allow the Industrial Commission to order the rules of an industrial union to be amended so as to exclude a particular group, class, section or description of members who are engaged in an activity contrary to s.8A.

4.2.   The Energy Administration Act

The Energy Administration Act allows the Governor to make a proclamation in respect of any problem which would effect the available supply of any form of energy or energy resource.  The Act further provides a penalty of $1,000 to be imposed upon a person who commits an offence against a regulation made under s.25 of the Act or upon a person who fails or refuses to comply with a direction of a Minister under s.27 or an order or direction under s.30 of the Act.

4.3.   The Essential Services Act

Particular mention and objection must be made concerning the Essential Services Act, which goes further than either of the two above pieces of legislation in the area of providing sanctions for strike action.

The Essential Services Act, introduced by the Liberal government earlier this year, represents a very serious assault on the right of workers to organise – which is a central aspect of freedom of association.  Apart from the very cogent industrial relations concerns that this Act raises, it is a matter of particular concern that:

• a range of specified services which are not ‘essential’ in the strict sense are covered;

• any other service can be declared to be an essential service, regardless of its character;

• industrial action, although not directly proscribed, is effectively prohibited as a result of the specified consequences for its occurrence or continuation; and

• if either a proclamation concerning an essential service or a state of emergency in an essential service is in force, then the powers of the executive arm of government are immensely enhanced in relation to an industrial dispute in the particular industry.

The right to organise is recognised in all the major human rights conventions which Australia has ratified and it is specifically protected by ILO Conventions.  Although the ILO accepts the right to strike may be restricted or prohibited in essential services, subject to certain compensatory guarantees, it has made it quite clear that this relates to essential services in the strict sense of the term.  It would appear that the Essential Services Act fails to conform with ILO Convention No.87 – Freedom of Association and Protection of the Right to Organise, 1948, and ILO Convention No. 98 – Right to Organise and Collective Bargaining, 1949.  Australia ratified both Conventions in 1973.

These international treaties, which Australia has freely ratified, are no more than re-statements of an essential attribute of a democracy, namely, that workers have a right to associate, to organise and to take industrial action to ensure they have just wages, safe conditions at work and other elements of proper employment.

Public sector unions, in particular, have expressed grave concerns with respect to the legislation.  The very wide interpretation of “essential service” ropes in a great many more workers than under existing legislation.  Coupled with this aspect of the legislation, is the compounding factor that public servants continue to be denied full and open access to industrial tribunals for independent arbitration of industrial matters (see chapter in this submission discussing the Review of the New South Wales Industrial Relations System).

Quite clearly, the Labor Council is wholly opposed to any essential services legislation and calls for the repeal of such statutory provisions.  However, the Essential Services Act, in particular, represents a matter of utmost concern to the union movement in New South Wales.  Accordingly, set out below is a detailed commentary on the Act with respect the particular areas of concern it raises.  The deficiencies of the legislation are so grave as to compel, in this review of the New South Wales industrial relations system, a recommendation to repeal this Act.

Part 1 – Preliminary

Essential Services

The Act specifically defines a number of essential services s.4(1)(a)-(1).  An essential service is described as:

• the production, supply or distribution of any form of energy, power or of energy, power or fuel resources;

• the public transportation of persons or freight;

• the provision of fire-fighting services;

• the provision of public health services;

• the provision of ambulance services;

• the production, supply or distribution of pharmaceutical products;

• the provision of garbage, sanitary cleaning or sewerage services;

• the supply or distribution of water;

• the conduct of a welfare institution;

• the conduct of a prison; and

• any service comprising the supply of goods or services necessary for providing any of the above services.

Moreover, the Governor may declare any service to be an essential service for the purposes of the Act (s.5(2)).  The only ‘restriction’ is that such an order may not be made unless a Minster has certified to the Governor that the service is essential in the public interest.

The Freedom of Association Committee of the ILO has held that fuel and transport services are not essential services.  It is likely that it would also declare some of the other services referred to in the Act are not essential.  However, the major defect in the Act is that the Governor is empowered to declare any service to be an essential service.

Proclamations made under these provisions may remain in force for up to thirty days and may be renewed at any time.  As will be outlined below, it is possible under this legislation for the Government to take control and run any undertaking which it declares to be essential service, and to control the terms and conditions of employment in that industry.

Relationship to other Acts, etc.

The Act is expressed to override anything express or implied in any other Act; any judgment or order; any award or industrial agreement; any contract or agreement, whether oral or in writing; or any deed, security, document or writing (s.5).

These sections clearly give the power to override important rights enshrined in statute and common law.  Notably, it has frequently been re-affirmed by the courts that workers have a common law right to withdraw labour if there is a legitimate health and safety concern.  This right is, to a certain extent, reflected in the NSW Occupational Health and Safety Act, and at a Federal level in the proposed Industrial Relations Bill (1988).

The powers conferred by the Act or regulations are expressed to be in addition to and not in derogation from any other powers exercisable apart from the Act (s.6), i.e. it does not repeal any part of the Energy Administration Act or s.8A and 8B of the Industrial Arbitration Act – it is clear that its provisions are in addition to those provisions in other legislation.

This could lead to a situation of serious double jeopardy for unions and individuals subject to sanctions under the Act or regulations.  For example, individuals could be subject to fines in respect of an alleged breach of a regulation, and still be subject to common law actions and/or proceedings under ss.45D and 45E of the Trade Practices Act concerning secondary boycott activity.

Part 2 – Disruption to Essential Services

Proclamation concerning an Essential Service

A proclamation leading to special regulations can be made whenever it appears to the Governor that from any cause the provision of an essential service is, or is likely, for any period: to cease; to be interrupted or reduced; or to be provided in a manner that does not generally meet community standards (s.8(1)).  The proclamation remains in force for a maximum of thirty (30) days (s.8(5)).

However, the Act provides that such proclamations can be made whether or not it appears to the Governor that an emergency situation exists, or is likely to exist, in relation to an essential service (s.8(2)).

In so far as the Act is purportedly designed to maintain services considered to be of an essential nature, the Labor Council must seriously question why the Act grants powers of proclamation where there is no threat, or even a likely threat, to essential services.

Regulations Operative During Currency of Proclamation

Section 9 comprehensively elaborates the regulation-making power in relation to an essential service once a proclamation is made.  Section 9(3)(d) provides that any such regulation may authorise a specified person to enter any place and to take possession or control of, or use, any property for or in connection with the essential service.

The latter section is ludicrously broad in its potential application.  This is for three reasons:

• a ‘place’ is defined to include land, road, building, structure, work, mine, vehicle and vessel (s.3(1)).  This means that it is not limited to workplaces, but potentially includes private homes and private vehicles;

• it appears that duly authorised person have absolutely unfettered powers of entry and seizure (s.9(3)(d)(i)-(ii));

• any person acting under the general authority of the Act is exempted from any form of recourse in respect of damage, loss or injury from their actions (s.24).  This means that anyone who suffers any damage or injury as a result of any action taken or purposed to be taken under the legislation is denied recourse to the courts for redress or compensation.  Anyone injured by a person providing an essential service under the Act whether it be by way of traffic accident, negligence in the provision of the service or some industrial accident, is specifically denied redress because of the very wide terms of the section.

The combined effect of these provisions is breathtaking in potential application.  By way of example, consider the situation where a supervisor had keys or operations’ manuals concerning an essential service at home.  A duly authorised person could enter that home with force, causing damage or injury with the purpose of seizing the property – and yet, by operation of s.24, be given complete immunity under the law.

State of Emergency Concerning an Essential Service

A declaration of a state of emergency in an essential service can be made whenever it appears to the Governor that from any cause the provision of an essential service is, or is likely, for any period: to cease; or to be interrupted or reduced; or to be provided in a manner that does not or is not likely to meet community requirements; or otherwise to be rendered insufficient for the reasonable requirements of the community (s.10).

Then a Minister may, by order, give directions to control the essential service.  Section 11(1)-(3) comprehensively elaborates the directions and orders that can be made by a Minister to control the essential service and direct people to provide that service, coupled with very wide powers of entry and seizure of property used in connection with the essential service.

Under a state of emergency is an essential service, a Minister may control the terms and conditions under which the essential service is to be provided.  Given that the Act is expressed to override legislation and awards, a Minister would have the legal right to direct the terms and conditions of his or her choosing.  For example:

• to direct that work be performed at a set rate, without special allowances, breaks or other award entitlements;

• to direct persons to work overtime where this is not an award requirement; or

• to direct workers to return from annual or long service leave to meet the workload in the essential service.

Whatever the practical likelihood is of such occurrences, the observation must be made from an industrial relations and, indeed, a civil liberation standpoint, that the Act clearly clothes a Minister with sweeping powers.

Part 3 – Entry and Inspection

Where a state of emergency in an essential service is declared, a Minister may appoint inspectors to carry out inspections for the purposes of the Act (s.12).

The functions of inspectors under s.13 and 14 of the Act are particularly comprehensive and intrusive, including broad rights of entry, inspection and seizure, coupled with the rights to test any equipment and demand the production of documents relating to the essential service (s.13).  An inspector may require any person to answer questions or otherwise furnish information relating to the provision of the essential service.  It is an offence to refuse or fail to comply with any requirement or answer any question of an inspector (s.14(1)(c)).

Although it appears that the functions are essentially directed to the employer’s property (plant, books, accounts and the like), it is equally clear that the purpose of such inspection could be to obtain material in aid of the prosecution of employees and/or their unions.

In relation to this aspect of the legislation, the privilege against self-incrimination, a cherished common law right, is specifically removed (s.14(3)).  Moreover the requirement that a person comply with any requirement of an inspector is derisory.  Taking the example of a supervisor holding keys again, he or she could be required to submit to a body search – something that even the police are limited in their ability to do.

Part 4 – Industrial Action

Stand-down of Employees

An employer has the right to stand-down any employee without pay if an essential services proclamation is in effect (s.16).  The onus is on unions (or a Minister) to show why a stand-down should not occur.  The period of the stand-down only forms part of the period of employment for the purposes of calculating annual, long service and sick leave, and superannuation or similar schemes.  It is not counted for any other purpose.

Under most awards containing stand-down provisions, the employer is required to demonstrate the reasons why the particular employee(s) cannot be usefully employed.  Thus, the usual onus is reversed.  And, of course, the traditional need for the employer to approach the Industrial Commission for a ‘stand-down’ award would, in the circumstances covered by the Act, become redundant.  Additionally, there is no apparent reason why the period of the stand-down should exclude other service-related benefits – notably maternity leave entitlements.

De-registration/Alteration of Rules

Suspension and cancellation of registration:  If a Minister, after consultation with the President of the Industrial Commission, is satisfied that orders in relation to an industrial dispute have not been complied with, a Minister may so certify to have Governor, who may then make a declaration that the registration of the union is suspended.

Cancellation of registration will automatically proceed after (7) days unless a Minister certifies to the Governor within that period that the union has ceased to engage in activities which are ‘contrary to the public interest’ (s.17(4)).

The union may appeal against the cancellation within the seven day period, subject to satisfying strict criteria that they have done all in their power to ensure a resumption of work and that the members of the union in fact resumed work and that at all times after that period, they have continued to work under normal working conditions (s.22).

The Act further makes it clear that the Industrial Registrar shall refuse re-registration for three (3) years if he or she is satisfied that application is made by the same or substantially the same group who were de-registered under the Act (s.17(4)).

Amendment of rules:  The Minister may certify to the Governor, as an alternative to de-registration, that union rules be amended to terminate sections of the membership (s.18) and to change the eligibility rules of other unions so as to include the area of coverage previously within the coverage of the union engaging in industrial action (s.19).

This section allows the selective termination and removal from membership by a Minister; and it clearly enables the removal of union leaders from their positions by terminating their membership.

The Industrial Commission is prohibited from hearing any appeal unless it is satisfied that the persons whose membership has been terminated did not, at the time at which a Minister’s certificate was given under s.17, engage in activities which were ‘contrary to the public interest’ (whatever that means).

The combined effect of these provisions ousts the prevailing de-registration and rule change proceeding existing within the system of industrial regulation generally.  Notwithstanding the very limited appeal rights, this part of the Act clearly amounts to a denial of the rules of natural justice which demand that those persons having the authority to make decisions resulting in some form of sanction act fairly.  Notably, the rules of natural justice require: a) the right to adequate notice of charges; b) the right to sufficient detail to put a case in defence; and c) the right to a fair hearing before the person(s) deciding the matter.

Moreover, it should be noted that the decision as to whether or not de-registration or rule changes ought to proceed is, for all practical intents and purposes, that of a Minister and not the Industrial Commission (i.e., a government rather than judicial decision).  These interferences with the operations of unions and their de-registration by the executive arm of government are flagrant infringements of international standards long-established by the ILO.

Recovery of Penalty by Appointment of Receiver

If a union, union member or executive member fails to pay a penalty imposed under the Act, the penalty becomes a charge on the assets of the union and a receiver can be appointed (s.23).

Any such penalties become a charge on the assets of the union unless the member or executive member acted in the matter concerned against the express resolutions or directions of the union or union executive.

This would apply even if, as could likely be the case, a very large number of members of the union accrued personal fines prior to the recommendation to return to work and (for whatever reason) were unwilling or financially unable to pay them.  In point of principle, it is wrong that union assets should be vulnerable to attack in circumstances such as these.

Part 5 – Miscellaneous

The concerns with respect to the blanket immunity from any form of liability afforded by s.24 are outlined above (see Part 2 of the Act).

Finally, s.25 introduces an official secrets provision, rendering it an offence (subject to certain specified exceptions) to disclose any information obtained in connection with the administration or execution of the Act.

Thus, any public servant, journalist, unionist or ordinary citizen who comes across such information – even if it demonstrates improper use of legislation, bad faith or impropriety on the part of a Minister or anyone else associated with the exercise of power under the legislation – is prevented from making that information public under threat of a substantial fine.

5.     Dispute Settlement

The Labor Council submits that a legislative framework for suitable dispute settlement procedures to be incorporated into awards and industrial agreements should be considered – to provide a formula which can be included in awards on the request of the parties.  It is clear that each dispute settlement procedure would need to be tailored to the requirements of particular industries, workplaces or occupations, as has occurred in many instances pursuant to recent National and State Wage Case decisions.

This approach would be consistent with the aim of encouraging consultation between unions and management and preventing industrial disputation at its source.  It would also be consistent with legislative provisions such as s.88G (dealing with retrenchment brought about by the introduction of mechanisation and technological change) or s.129B (dealing with preference of employment to union members) of the Industrial Arbitration Act.

It may be appropriate to consider the following factors in any formula for dispute settlement procedures:

• an indication that areas of dispute be discussed by unions, workers and management prior to industrial action being taken;

• the setting up of regular disputes committees to discuss general problems which may arise between employees and management;

• the creation of committees of representatives of the different unions at job delegate level for the purposes of joint negotiations with management;

• reference to industrial tribunals if the parties are unable to reach agreement in ordinary discussions carried out between them;

• the need for areas of dispute to be communicated promptly by job delegates to their union office to ensure prompt knowledge of threatened or pending disputes;

• where any strike could threaten the employment of members of other unions, the need for the matter to be communicated to the Labor Council; and

• the provision of a ‘cooling off’ periods should industrial action arise over a particular issue and provisions outlining the steps to be taken by parties in dispute to attempt to resolve the issue during that period.

1.     Introduction

‘What should be the role of the New South Wales Department of Industrial Relations and Employment?’ is no simple question.  Matters of priority and resources, as well as policy considerations are important to answering that question.  In one sense, there is almost no limit to the kinds of regulatory, policing, policy formulating and administrative responsibilities of the Department.  After all, this is a Department which is empowered not only to formulate and develop employment programmes, workplace inspections, oversight of training issues and so on, it is also has wide community responsibilities, including public safety.  For example, the present Minister for Industrial Relations and Employment was widely quoted in the middle of 1988 to the effect that he was surprised to discover that when the Sydney Monorail broke down it was his Department which was charged with the responsibility for certifying that this vehicle was safe for travel.  It is certain that the Minister was not the only one surprised about the vast extent of the Department’s responsibilities.

Although it is certainly true that the Department of Industrial Relations and Employment will always have difficulties judging how best to allocate limited resources, it is also necessary to emphasis that each section of the Department needs to carefully assess its objectives and its performance measured against those objectives.  There is one thing no more certain: if public officials and organisations give little thought to what they are and should be doing, the end result will be a mediocre mess.

This chapter will concentrate on a limited range of responsibilities of the Department as follows:

• The Industrial Registry;
• The Central Planning and Research Unit;
• Occupational health and safety;
• Award enquiries;
• Licensing, registration and inspection responsibilities;
• The Industrial Relations Co-ordination Unit;
• Legislation, advising and prosecutions responsibilities;
• Women’s Directorate;
• The Work Advisory Unit;
• Community skills development;
• Employment programmes;
• Public sector employment; and
• Superannuation.

In looking at the various functions of the Department, the Labor Council will argue about particular objectives and sketch strategies which may be appropriate.

Before going into detail, it should be mentioned that the Labor Council is not impressed by the argument that governments have next to no role to play in the industrial relations and related fields.  It would be a miserable outcome for a government to eloquently state its desires about industrial relations and public safety, and do nothing to provide the resources necessary to regulate on those matters.

Not only would that be a breach of public faith and responsibilities (with all the consequent social dangers of such folly), it would also be economically disastrous.  Does anyone really pretend that in New South Wales there should be no personnel and aid provided through the Department in wages policy, occupational health and safety, industry inspection and the whole gamut of the Department’s current responsibilities?  An affirmative answer would be to push New South Wales to the most primitive level of industrial relations.  That is hardly a recipe for economic progress.  For governments, there is no such luxury of ‘stop the world I want to get off’.  Nonetheless, as already mentioned, these points do not obviate the fact that finding and allocating resources and priorities by the Department will always be complex and difficult.

2.    The Industrial Registry

The Labor Council accepts that the functions of the Industrial Registry are to administer the industrial arbitration system in New South Wales and to service the following tribunals established under the Industrial Arbitration Act:

• Industrial Commission of New South Wales;
• Retail Trade Industrial Tribunal;
• Conciliation Commissioners;
• Conciliation Committees;
• Apprenticeship Conciliation Committees;
• Contract Regulation Tribunals; and
• Industrial Magistrates’ Courts.

Accordingly, the function of the Industrial Registrar is to ensure the efficient operation of the administrative aspects of the industrial arbitration system.  The Office of the Industrial Registrar is the registry for all tribunals established under the Industrial Arbitration Act.

At present, the Industrial Registrar’s major roles are to:

• register trade unions and industrial unions of employees and employers and their rules;

• receive and direct service of applications to constitute conciliation committees, applications to vary and/or make awards and to receive notifications of industrial disputes and process matters resulting in proceedings before Industrial Magistrates;

• settle the terms or orders and awards made by industrial tribunals;

• vary awards to give effect to general rulings by the Industrial Commission in relation to such matters as the basic wage; and

• edit the New South Wales Industrial Arbitration Reports.

The Labor Council advocates that the following issues need to be considered:

1. Whether the Industrial Registrar should assume responsibility for the transcription services to members of the Commission and to the Commissioners.  This became a contentious issue in 1988 as a result of the Attorney General’s unilateral proposal to cease all such services to Commissioners.  That situation was only overcome by the intervention of the New South Wales Minister for Industrial Relations who secured the continuation of resources necessary for this task.

• That there should be overall co-ordination within the Registrar’s office of the timely publication and updating of awards.  This matter will also be discussed in the section of this chapter dealing with award enquiries.  The Labor Council is aware of numerous complaints with respect to outdated awards being published in the Industrial Gazette and of award enquiry staff driven to distraction because of inaccurate material upon which they must rely.  For example, in the Industrial Gazette published in August 1988, the wage rates for hairdressers state the rates applicable in 1986, thereby misleading employers, workers and, for that matter, employees of the Department who are charged with the responsibility of providing accurate information to the public.  It would seem appropriate that the Registrar assume some responsibilities, primarily a co-ordination role in this field.  (See also chapter in this submission on the Review of the New South Wales Industrial Relations System.)

• That the Industrial Registry should assume partial responsibility for the induction and training of members of the Commission and Commissioners.

It is noted that the Judicial Commission of New South Wales plays a continuing legal, education and training role in this respect.  However, what is recommended here is that the Registrar, in consultation with the President of the Commission and other members of the Commission and the Commissioners, should assume some responsibilities here.  In this era of award restructuring and concentration on workplace efficiencies, it may be appropriate to emphasise here the importance of training, retraining and skills development.  This point in no way is to reflect on the calibre of the Judges, Deputy Presidents or Commissioners.  It is an argument about improving the quality and competency of the tribunal members.

• The Registrar, at least on an annual basis, should meet separately or as otherwise deemed appropriate with:
• the President and all Commission members;
• the Conciliation Commissioners;
• representatives of select employers’ peak councils;
• representatives of the Labor Council of New South Wales

to discuss any issues within the purvey of the Registry.  The Labor Council believes that such consultation should provide a valuable check on the efficiencies and responsibilities of the Registry.

• Appropriate resources should be allocated to the Registry to allow officers to adequately perform their tasks.

3.    Central Planning and Research Unit

The Labor Council notes that the current objective of this Unit is all encompassing: namely, to provide sound information and advice as the basis for effective decision making and policy development within the Department.

Resources of the Unit include an extensive library.  In recent years, the main areas of involvement concerned occupational health and safety matters, industrial relations and labour market planning – particularly in relation to apprenticeship and vocational guidance.  The Unit monitors economic and social trends, as they affect industrial relations and employment in New South Wales.

Therefore, it follows that this Unit should be the major research wing of the Department.  However, to now describe the Unit in this way would be ludicrous because lack of resources and clear objectives by the upper echelons in the Department have prevented this Unit achieving its potential.

The Labor Council suggests that the following objectives should be pursued:

• The Central Planning and Research Unit should primarily focus on providing research advice to the Minister and the Department (including advisory bodies) with respect to labour market trends in New South Wales.  Such advice should not only be ‘calculator driven’, it should also, whenever appropriate, put forward policy implications and suggestions.

• The Unit should monitor wages and negotiation outcomes in the public and private sectors and summarise such findings.  This advice, for example, may be valuable for the deliberations of the New South Wales Labour Relations Consultative Committee.

• In 1985/86, the Unit produced some information about New South Wales awards in the form of a computerised award survey.  This should be developed and updated in consultation with the Industrial Registry and the Federal Department of Employment and Industrial Relations.  The latter has developed a sophisticated awards record system called FATEXT.  The development of such a system should markedly improve the efficiency of the Industrial Registry and the Award Enquiries Section of the Department.

• This Unit (or a sub-section of it) should be charged with the responsibility for training programmes of the Department’s staff.  Such programmes should aim at improving skills, competency and knowledge of the employees engaged by the Department.

• The Unit, rather than attempting to do the research work of every section of the Department, should concentrate on particular tasks as outlined here and, as well, advise other sections of the Department about research matters.  This will encourage each section of the Department to do their own thinking and not simply shove problems to a remote research unit.

• Consideration should be given to the overlap between this Unit and, for example, the Industrial Relations Co-ordination Unit.  This review should be part of any review of the organisation of work within the Department.

As is pointed out elsewhere in this chapter, the Department has the responsibility to ensure that statutory and award entitlements are enforced.  The Labor Council would submit that it is also the responsibility to give effect to State Wage Case principles and to provide industrial tribunals with the resources to make those principles work.

One case in point is the Supplementary Payments principle – a principle which arose out of a distinct wage fixation history to meet clearly expressed objectives.  An essential requirement of the principle is information on the incidence of actual rates of pay (and thus overaward payments), which generally requires a survey which always involves a cost.  Just as the Federal Department of Employment and Industrial Relations has funded the Australian Conciliation and Arbitration Commission to facilitate necessary surveys and the Victorian Department of Labour has at least in part funded surveys, the New South Wales Department has a responsibility to provide the Industrial Commission with the resources to give proper effect to its principles, including the Supplementary Payments principle.

4.    Occupational Health and Safety

The considerable responsibilities of the Department in the occupational health, safety and related fields are discussed elsewhere in this submission, wherein detailed recommendations by the Labor Council are to be found.  (See the following chapter).

5.     Award Enquiries

The Award Enquiries Section of the Department is in many respects the ‘shop front’ of the Department.  The Labor Council argues that the government and the Department has a public duty to ensure that information is accurate and up to date.  This is not always the case as mentioned above.

The Labor Council argues that:

• the Industrial Registry should be responsible for oversighting this area (as earlier discussed);

• the Central Planning and Research Unit should be consulted with respect to computerising award information;

• the effectiveness of the current service should be reviewed, in particular as to the timeliness of answering telephone enquiries;

• adequate resources should be allocated to this area; and

• training and development of personnel, particularly in communication skills, should be a high priority.

6.    Licensing, Registration and Inspection Responsibilities

The Labor Council strongly supports the regulatory and policing responsibilities of the Department.  The Labor Council notes that the Department’s Licensing and Registration Branch is responsible for administering legislation concerning the registration of factories and shops (including automatic vending machines) and the issue of particular licences.

Such activities also generate considerable income to the Department.

The Labor Council notes that the Department has undertaken an extensive review of its licensing and registration schemes.  It is understood that administrative processes will be streamlined through a phased programme called the Integrated Registration System.  This system will also create a data base of key technical information to be used in implementing occupational health and safety strategies.  The Labor Council supports such outcomes, however, as a rider, the Labor Council argues that the quest for streamlining and bureaucracy trimming should not be a camouflage for eliminating appropriate regulations.  The cry of ‘government interference’ should not intimidate the Department or the government from implementing and enforcing fair and tough regulations.  Nothing less than the protection of the public is at stake in such considerations.

The Labor Council suggests that consideration be given to:

• co-ordinating in the one Unit the licensing, registration and inspection responsibilities;

• reviewing registration and licensing charges and revenue;

• increasing competence of inspectors through rigorous training programmes; and

• increasing resources, particularly staff levels, in this area.

One area of future activity is in the field of media liaison and the public relations required to explain the New South Wales industrial relations system.  It is disturbing that Taronga Park Zoo devotes more resources to media liaison than does the Department of Industrial Relations and Employment.

7.     Industrial Relations Co-ordination Unit

The Labor Council notes that the current objective of this Unit is to provide the Minister and senior departmental officers with sound information and advice as a basis for developing industrial relations policy.  It achieves this by monitoring industrial relations trends and developments, both in the public and private sectors – particularly those involving work stoppages in essential service industries.

The Labor Council suggests that this Unit and the Central Planning and Research Unit overlap and some consideration should be given to their merger or integration (see earlier discussion).  Consideration should also be given to the appointment of mediators, similar to the Victorian experience.  What is suggested here is that practically-minded and experienced persons may be able to assist certain industrial situations by shaping the environment and tackling problems before they fester.  (On this point, also note the further discussion in the chapter concerning Equal Employment Opportunity, Discrimination and Industrial Relations).

8.    Legislation, Advisings and Prosecutions Responsibilities

The Labor Council notes that the Legislation and Advisings Branch currently attempts to provide legal advisory and drafting services to the Minister and the Department as effectively as possible.  It might be noted, in passing, that this is a complex task: just as every word of the Statute of Frauds is said to be worth a King’s Ransom, so it might be argued that every word of the Industrial Arbitration Act is worth three or four Queens’ Counsel!

The Labor Council notes that the following functions are carried out:

• responsibility for the implementation of legislative programmes in respect to legislation administered by the Department;

• responsibility for the drafting of Regulations under Acts administered by the Department;

• assistance to government instrumentalities which fall within the Minister’s administration in implementing their legislative programmes and drafting Regulations;

• examining proposals for new legislation and other policy initiatives; and

• providing a legal advisory service to the Minister, senior departmental officers and officers of other government instrumentalities under the Minister’s administration; answering enquiries from officers of other departments and members of the public.

The Labor Council argues that there is logic to marrying these tasks to the prosecuting responsibilities of the Department.  Besides theoretical advice, the officers of this Branch should also be required, for example, to prosecute award breaches and those evasions of regulatory requirements in the Factories, Shops and Industry Act areas.  It follow that:

1. considerably more resources should be allocated to this Branch, particularly if a real effort is to be mounted in the area of systematically attacking breaches of legal requirements;

• co-ordination with other Branches (particularly the Licensing, Registration and Inspections areas) must be a high priority; and

• training of officers in this area must be improved.

9.    Women’s Directorate

The Labor Council has separately argued in the chapter on Equal Employment Opportunities and Discrimination that the Women’s Directorate within the Department of Industrial Relations and Employment is of fundamental importance to improving the status of women in the New South Wales workforce.

The Labor Council argues that the following points should be given consideration. 

The Women’s Directorate should:

• provide policy advice to the Minister and the Department on issues affecting women at work and co-ordinate action for change aimed at equal employment opportunities.  For example, the work in the field of out-workers, award free and unprotected areas of employment where females predominate should be continued;

• liaise with State and Federal government departments, employers, unions and working women on issues affecting women at work.  For example, there should, at least on an annual basis, be separate consultation with select employer peak councils and the Labor Council with respect to such issues and the activities of the Directorate;

• in consultation with the Central Planning and Research Unit, provide and distribute information to the public about women’s employment, pay and conditions at work;

• oversee, in conjunction with the Public Employment Industrial Relations Authority, the development of equal employment opportunity programmes in the State public sector.  It should be mandatory that such programmes are developed in consultation with appropriate unions;

• monitor the effectiveness of various programmes developed by the Department (such as apprenticeships for women in non-traditional areas) and other bodies (such as affirmative action programmes in the private sector) which are aimed at improving the status of women;

• liaise on working women’s issues with the Women’s Advisory Council now located within the Department of Family and Community Services;

• in consultation with the Labor Council, review any awards and/or agreements which may be considered discriminatory with a view to eliminating such discrimination.  (This, however, should not be an excuse to level down conditions.  If levelling is to occur, it should be to protect the most favourable position, from the employee’s perspective.  Occupational health and safety considerations should be a primary factor in such a review); and

• advise the various sections of the Department on working women’s issues and the effectiveness of the Department’s performance in this area.

10.  Work Advisory Unit

The Labor Council argues in the Industrial Democracy chapter on the submission that the New South Wales government should do everything short of moving heaven and earth to encourage participative and consultative practices in the public sector.  The Work Advisory Unit has undertaken and can continue to undertake valuable work in this area.

The Labor Council recommends that the Work Advisory Unit should:

• issue statements and provide policy advice to the Minister and the Department encouraging industrial democracy practices;

• provide pro-active assistance to managers throughout the public sector on industrial democracy practices aimed at dealing with real industrial issues;

• become much more involved in award restructuring and work place efficiency reviews.  The Unit should assist unions and the Public Employment Industrial Relations Authority, as well as the private sector in this area;

• liaise with employers and unions on industrial democracy questions.  On at least an annual basis, there should be consultation with select peak councils of employers and also with the Labor Council of New South Wales concerning the activities of the Unit;

• in consultation with the Occupational Health, Safety and Rehabilitation Council, provide advice and assistance to occupational health and safety committees;

• charge when appropriate for services.  Such occasions should be rare (such as when major resources are devoted to a project); and

• liaise with the New South Wales Labour Relations Consultative Committee on industrial democracy questions (rather than separately reviving the Standing Committee on Employee Participation).

11.   Community Skills Development

The Labor Council supports the excellent work carried out by the New South Wales Apprenticeship Directorate, the Commerce and Industry Training Council and the other training/skills development agencies of the Department.  The Labor Council supports the argument that those responsibilities should be better co-ordinated and notes that the Apprenticeship Council and the New South Wales Commerce and Industry Training Council will be merged, combining apprenticeship and traineeship responsibilities.

It is essential, particularly given the looming major changes with award restructuring in many industries, that proper resources be devoted to this field.  Labor Council policy argues that the following objectives should underpin the Department’s employment programmes:-

i)     Employment policy should aim to increase the number of worthwhile and skilled jobs for young people.  This will be best achieved through a combination of policies which:

• aims for the highest possible levels of economic growth;

• draws close links between education, industry and employment policies particularly through programmes to build up skills in manufacturing industry and attract more young people into this sector;

• targets specific programmes to young people, especially those who are disadvantaged in the labour market.

• High quality education and training programmes should aim to provide a broad range of options for young people which also produce a highly skilled, responsive and adaptable workforce.  Policies should aim to provide worthwhile educational experiences by young people, rather than simply concentrating on increasing school retention rates.

• The mismatch between skill shortages and those seeking employment should be reduced to an absolute minimum through more effective labour market analysis and dissemination of information, and specific employment/education strategies.

• Special measures are required for those who are particularly disadvantaged in the labour market such as migrants, Aboriginals and people with disabilities.  These measures may well prove to be cost-effective if they reduce levels of long-term unemployment.

• The programme should aim to significantly reduce the segmentation of the labour force, particularly for females.  This is an important social and economic objective, since it aims to achieve equality of opportunity and improves the functioning and productivity of the labour force.

• The integrated programme should be developed co-operatively by unions, government, employers and organisations representing young people.  Professionals who are involved in the delivery of programmes (such as teachers and community workers) should also assist in policy and programme development.

• An integrated employment, education and training strategy for young people can only succeed if it is properly resourced.  Increased funding for specific employment initiatives and additional education and training places must be provided by both governments and the private sector (whose contribution to education is very low by international standards).  The Labor Council supports the establishment of a National Employment and Training Fund for employment and skill formation and enhancement, training and general education.  The fund should be financed by the business sector.

All these questions, particularly the integration of employment, education, training and income support, should be dominant considerations for the New South Wales Department of Industrial Relations and Employment.

On the matter of training priorities, the Labor Council argues that training programmes should be of high quality and provide skills and qualifications which are of value to both employers and recipients.  Training programmes should provide a range of options for young people leading to worthwhile jobs linking into further education.  The Labor Council does not support ‘mickey-mouse’ training programmes which offer no long term benefits to participants.

Nor does the Labor Council believe that young people’s training should be confined to skills which are specific to one job, rather, it should extend to opportunities for fully fledged education in the course of their working lives.

Training programmes should be sufficiently flexible to meet the different needs of participants, especially those disadvantaged educationally or those already in the labour market.  All training programmes should include targets for participation by those who are disadvantaged and for young women.

The Labor Council supports a concept of ‘multi-skilling’ which enables unions and their members to participate in the creation of new skill classifications based on new combinations of existing skills, to suit change based on industry needs.  However, the Labor Council does not support the use of ‘multi-skilling’ by employers to undermine apprenticeships and other structured training programmes which enhance necessary skills.

The Labor Council believes that the training provided by individual firms must, wherever possible, correspond to transferable and recognised qualifications.  This requirement will override the secondary concern for flexibility in enterprise training practices.  The length of training programmes should be determined according to the needs of individuals and the requirements of the occupation or industry to which the programme is targeted.  They should not be restricted by the imposition of arbitrary limits.

It follows that it will be necessary that the Community Skills Development Section of the Department should:

• liaise closely with unions and employers on skills development and training issues.  This should include industry consultative councils;

• push TAFE to be much more responsive to industry needs.  It should be mandatory that the head of this section of the Department, together with the Department Secretary and the Director General of TAFE and other TAFE officers, regularly meet to discuss issues of co-ordination and initiatives for skills development;

• liaise with and, wherever appropriate, co-operate with Commonwealth initiatives, particularly the Education, Employment and Training Council;

• reassess the Report of the Working Party Reviewing the New South Wales Apprenticeship Legislation released in 1987 and its recommendations.  This assessment should be done as a matter of priority and in consultation with select peak councils of employers and the Labor Council.  (In suggesting this reassessment, this is not to deny, as is widely known, that the Labor Council has rejected some of the recommendations of the Working Party.  Nonetheless, the Working Party did put forward many practical suggestions which should be implemented);

• encourage the Vocational Guidance Section to become much more integrated with the Commonwealth Employment Service and TAFE advisory services;

• ensure that training initiatives are consistent and integrated with employment and income support measures; and

• promote apprenticeships, traineeships and encourage industry to increase their capacity and responsibilities in the training and skills development fields.

12.   Employment Programmes

The Labor Council notes that the New South Wales government is reviewing the employment programmes of the Department with a view to assessing their effectiveness and utility, and that the government is also proposing to develop a ‘Start to Life’ programme.  Obviously all of those matters are intimately related to the community skills development programmes of the Department.  Therefore, employment programmes should not be regarded as one off initiatives divorced from a strategy combining the elements of education, training and income support.

The Labor Council argues that the following matters should be considered.  The Employment programmes of the Department should focus on:

a) integrating employment policies with the big issues affecting Australian industry, including:

• award restructure
• career paths
• productivity development
• training;

b) targeting the industries which New South Wales should aim to develop.  The work done by the New South Wales State Development Council in 1987/88 in this area should be utilised;

c) assisting small business and other businesses beyond the ‘incubation’ stage.  Over the years, a good deal of assistance has been given to encouraging small business, often in an indiscriminatory way, without addressing the question: “Which small businesses are best for the New South Wales economy, the strategic priorities of the government and for which assistance is justified?”;

d) considering how a ‘First Start’ scheme can be developed consistent with the abovementioned priorities;

e) recognising the value of unions as agents facilitating employment growth.  The union movement in New South Wales can be very much part of the solution to the employment challenges of New South Wales industries.  The alternative (of exclusion) can only harm the government’s and the community’s interest in ensuring that every available resource is harnessed in the interest of not only employment generation, but also decent and satisfying jobs;

f) minimizing administrative and bureaucratic expenditures in this area and maximising assistance to non-governmental bodies, including employers and unions; and

g) increasing attention to and resources necessary for the training of officers in the employment field.

13.   Public Sector Employment

The Labor Council notes that the Department’s traditional advisory role in the area of public sector employment is now complicated by the creation of the Public Employment Industrial Relations Authority which will also report to the New South Wales Minister for Industrial Relations.  Complications can be confusing or interesting.  The Labor Council sees no reason why the Department should not continue to fearlessly advance objective and independent advice on all public sector industrial relations matters to the Minister.

The Labor Council argues that the following considerations should be paramount:

• the government should aim to be an exemplary employer – in other words, attempt to be at the forefront in implementing standards of equity and efficiency;

• full access to the New South Wales tribunals should be provided for public sector employees.  (This matter is fully discussed in the chapter on the Review of the New South Wales Industrial Relations system);

• staffing levels adequate to meet workloads should be set in consultation with representatives of affected workers.  Arbitrary staffing reductions are opposed;

• the terms of employment of the various categories of staff should contain no adverse discriminatory distinctions;

• job mobility within and between the New South Wales public sector should be expanded and allow for portability or preservation of superannuation and other entitlements;

• after consultation with unions, mandatory enforceable minimum codes covering the working environments, amenities and occupational safety and health of government employees should be incorporated in New South Wales legislation, such legislation to provide for a continuing union/government review mechanism;

• there should be recognition in recruitment to public sector employment and in general conditions, of the position of people who are disadvantaged and of youth;

• effective equal employment opportunity programmes should be implemented in consultation with unions;

• government employment should be at the forefront in extending industrial democracy and achieving greater influence and involvement of employees at all levels of the decision making process.  This question is also discussed above in the section dealing with the Work Advisory Unit and in the chapter of this submission discussing industrial democracy.  The Labor Council believes that the government should set an example to the private sector in this field;

• the government should encourage wide participation, including union representation, on consultative and management advisory bodies in the public sector.  The Labor Council commends the value of worker directors and supports the view that the appointment and election of workers, supported by their unions, can considerably improve workplace industrial relations;

• all conditions of employment for government employees should be enshrined in awards;

• the government should take action to implement measures which will provide union members in public sector employment with effective rights and sanctions against victimisation and other detriments on account of their union activity.  This is necessary because industrial relations legislation dealing with certain offences in relation to members of organisations, etc. has been held to be inapplicable to public employment, due to Crown immunity against prosecution;

• the government should declare its support against discriminatory industrial legislation directed against public sector employees; and

• as earlier advocated, there should be independence and a clear separation of powers between the Department and the Public Employment Industrial Relations Authority.

14.   Superannuation

The Labor Council notes that at present the New South Wales Superannuation Office reports separately and directly to the New South Wales Minister for Industrial Relations and Employment.

The main objectives of the office are to efficiently monitor and analyse current trends in, and to anticipate future directions in the development of, public sector superannuation so as to provide effective and timely advice to the Minister by:

• researching and analysing issues relating to superannuation, particularly in the New South Wales public sector;

• advising and making recommendations to the Minister concerning these issues;

• developing policy in relation to superannuation matters.  For example, in the recent development of the State Authorities Superannuation Scheme;

• assisting and co-operating with the various Boards and administrators entrusted with the administration of public sector superannuation in New South Wales;

• liaising with employer and union groups, particularly in the latter case, with the Labor Council of New South Wales;

• assisting the Parliamentary Counsel in the drafting of Bills and Regulations;

• preparing and co-ordinating ministerial replies to representations; and

• monitoring developments in public sector superannuation throughout Australia.

The Labor Council has no view as to whether this Office should stand alone or be part of the Department.  Nonetheless, it is worth recording that the Labor Council’s impression, particularly given the significant superannuation changes which have occurred in recent years, is that the Office is extremely competent.

15.   Conclusion

Within the industrial relations community everyone has an opinion about the Department of Industrial Relations and Employment.  Some of this is critical and, regrettably, in some cases, deservedly so.  Therefore, it is timely that a review of the functions and the performance of the Department be part of the Green Paper review.

This chapter has argued about a number of the major functions of the Department.  Hopefully, based on this submission, worthwhile changes will be enacted.

Perhaps the most important thing to bear in mind in an assessment of the Department’s responsibilities is that when resources are scarce (and in this case the Department’s staff and resources base is hugely inadequate), there is an even more compelling reason for maximising the productivity of the Department’s operations.  That requires more than a close look at the different parts of the Department.  It also requires an overall examination of the objectives and priorities to be achieved.  That probably will lead to a shrinking of the number of top administrative jobs and the direction of more resources to the areas of greater need, particularly the training of the Department’s own employees.  Of the Department of Industrial Relations and Employment, as it might be said generally, restructuring and efficiency is the order of the day.

1.     Introduction

The ultimate goal of any industrial society must be to create systems of work which ensure that workers never need to rely on any form of compensation or rehabilitation, by ensuring that they are not injured in the first place.  Accordingly prevention of occupationally related accidents and diseases must be the central theme of any strategy which deals with workplace health and safety.

Since the Williams Report (the Report of the Commission of Inquiry into Occupational Health and Safety in New South Wales) was tabled in the New South Wales Parliament in August, 1981, many advances have been made in occupational health and safety legislation and administration in New South Wales.  However, the annual rate of illness, injury, disability and death attributable to preventable occupational incidents and exposure remains unacceptably high in terms of human suffering and economic costs.

Despite the introduction of the Occupational Health and Safety Act in 1983:-

• the older prescriptive legislation, particularly the Factories, Shops and Industries Act 1962 and the Construction Safety Act 1912, continues to be applied preferentially by the Inspectorate;

• the comprehensive needs of high risk industries, including mining, manufacturing and construction, are yet to be fully or effectively addressed;

• the health and safety requirements of many employees in a range of other industries are yet to benefit in real terms from legislative coverage; and

• public sector employees are disadvantaged by an occupational health and safety committee structure best suited to single worksites where decision-making employer representatives can be realistically accessed and decisions implemented.  This structure does not describe many public sector experiences.  Further, government departments have knowingly and repeatedly breached statutory occupational health and safety requirements without prosecution or effective remedial action being taken.  The public sector should, in fact, be leading by example.  Therefore, the Labor Council argues that the public sector should be bound by those laws and regulations affecting the private sector in the occupational health and safety field.  The excuse of Crown privilege and prerogative must cease.

Commissioner Williams recommended a joint approach to occupational health and safety, with recognition of legitimate employee participation.  Despite the development of workplace occupational health and safety committees and training regulations, many inadequacies remain in the operation of workplace health and safety committees.  These include:

• a lack of formal requirements for workplaces with less than 20 employees;

• no requirement for, or recognition of, occupational health and safety representatives (as occurs successfully in Victoria);

• no formal recognition of the legitimate role of union representatives in representing employee occupational health and safety concerns on workplace committees;

• limited access to training.  This should be available to all members of the workforce, not just workplace committee members, by way of induction, general and specific hazard training programmes;

• workplace committees are generally not being adequately consulted during planning and design stages of projects, contrary to statutory requirements; and

• workplace committees often do not receive all relevant information required for appropriate assessment and decision making purposes.  This includes access to factual reports from Departmental inspectors.

Despite attempts to restructure, co-ordinate and enhance occupational health and safety services offered by the Department of Industrial Relations and Employment (DIRE), these suffer by having to compete for resources – legal, financial and human – within the Department and its Divisions.

2.    Prevention

It is acknowledged that New South Wales still has an expensive workers’ compensation system.  With new insurance arrangements and benefit structures now applying, the only effective means of reducing workers’ compensation premiums is to reduce the incidence of occupational injury, disease and death.  This must inevitably mean a major commitment on the part of the government and employers to occupational health and safety initiatives which centre on preventive strategy.  In addition, there is the need for resources to be applied in the occupational health and safety training area.  This is discussed in the chapter on Industrial Relations and Trade Union Training.

2.1    The Need for Continued Support and Development of DIRE Services

In 1987, the former government introduced a number of initiatives relating to occupational health and safety, in association with the new workers’ compensation arrangements.  These included long awaited amendments to the Occupational Health and Safety Act, innovative administrative reforms and enhanced support arrangements within the Department of Industrial Relations and Employment.

Amendments to the Occupational Health and Safety Act, made by the former New South Wales government in 1987, are strongly endorsed by the Labor Council.  The amendments are intended to strengthen the Act and contribute to the prevention of workplace injury, illness and death.  The amendments serve to:

• enable the Secretary of an industrial union whose members have an interest in the proceedings to institute proceedings for an offence under the Act;

• empower the imposition of an additional penalty of up to two years imprisonment for a second or subsequent offence against the Act comprising wilful repetition of a previous offence;

• provide that proceedings for an offence may be taken before the Industrial Commission rather than the Supreme Court in its summary jurisdiction;

• increase the maximum penalty which may be imposed for an offence by a local court or an industrial magistrate;

• double the penalties for offences under the Act and Regulations;

• require employers to make available to their employees certain information relating to plant or substances used at a workplace;

• enable the formulation of industry codes of practice; and

• expand the regulation making powers under the Act.

In addition to legislative changes, the former government gave a commitment to undertake specific administrative and support arrangement reforms.  These proposals included:

• 30 additional positions in the Division of Inspection Services and the Division of Occupational Health (24 inspection staff, 6 scientific staff);

• creation of 10 occupational health and safety trainee inspector positions;

• creation of senior staff development position and one training position in the area of inspector training;

• creation of two technical staff positions in a new hazards and standards information service unit;

• creation of risk management advisory position;

• creation of two positions to implement the public education programme;

• creation of four research/computer staff positions in a new illness and injury information unit (computer equipment to be installed in regional offices);

• creation of three technical staff positions in a new Major Hazards Prevention Unit;

• creation of an additional four administrative/research staff and two clerical staff positions to serve the Occupational Health, Safety and Rehabilitation Council of New South Wales and its committees; and

• new inspector and training programmes.

It is imperative that this reorganisation of occupational health and safety services within the Department of Industrial Relations and Employment continues to be encouraged and supported adequately by the government.  As yet, not all the above promised actions have been undertaken, such as the creation of the risk management advisory position, and the Labor Council considers that still further actions are required to allow for the effective enforcement of occupational health and safety legislation.

Regarding the Inspectorate, in particular, a further increase in the number of inspectors in the scientific staff must be forthcoming and greater consideration must be given to diverse relevant qualifications and experience when appointing inspectors.  In pursuance of this objective the Labor Council calls upon the Occupational Health, Safety and Rehabilitation Council of New South Wales to conduct a thorough, tripartite, review of the Division of Inspection Services of the Department of Industrial Relations and Employment.  Such a review should include an examination of roles and functions, staffing levels and Inspectorate training.

More emphasis must be placed on prosecutions to ensure compliance through the provision of safe and healthy workplaces.  In this way, the Department can move away from the present emphasis on the investigation of accidents after the fact towards being truly pro-active and preventive in occupational health and safety.

2.2    Access to Occupational Health Services Through Joint Workplace Prevention Programmes

The prevention of accidents, injuries and disease is clearly the goal of any comprehensive strategy which links occupational health and safety, rehabilitation and compensation.  A commitment to prevention is the first requirement in the ‘Guidelines for Workplace Based Occupational Rehabilitation’ (issued by the Occupational Health, Safety and Rehabilitation Council of New South Wales) under which large employers must have joint workplace rehabilitation programmes in place by 1^st January, 1989.

In order to translate such a commitment into the reality of the workplace, further guidance, co-ordination, and resources must be provided to implement both short and long term strategies.  Ultimately, the entire workforce of New South Wales must have access to comprehensive occupational health and safety services.  A pre-determined, considerable proportion of the activities and resources of such services should be dedicated to the development, implementation and evaluation of preventive strategies.  In the Swedish occupational health services outlined below, for example, 30% of each service’s budget must be applied to these purposes.

a)    Occupational Health and Safety Services – The Swedish Model

Article 5 of the International Labour Organisation Convention concerning Occupational Health Services details the functions which should be undertaken by an occupational health service (see Appendix 2).  Sweden has successfully provided access to occupational health and safety services for about 70% of its employees.  This service is provided by approximately 900 Occupational Health Units.  These units are of three main types:

• In-house occupational health and safety services at large workplaces;

• Joint occupational health and safety centres for several workplaces in the same area; and

• Special occupational health and safety centres for industries with specific problems.

To be entitled to grants from public funds, it is required that Swedish occupational health and safety services:

• constitute an impartial advisory expert function;

• work medically, technically and socially on a preventive basis;

• be staffed by personnel trained for the purpose;

• have competence and resources for adjustment and rehabilitation work;

• be integrated or co-ordinated with local Occupational Health and Safety Committees;

• be managed by a joint body such as a peak consultative committee or occupational health and safety committee; and

• constitute an integrated resource from the users’ viewpoint.

Such occupational health and safety services are developing in advanced industrial nations.  Whilst it will take time to develop these resources in New South Wales and, in particular, to develop a pool of capable and experienced occupational health and safety professionals, Workplace Prevention Programmes should be jointly developed and implemented to facilitate the establishment of state-of-the-art occupational health and safety services in this State, whilst reducing the incidence of occupational accidents, injuries and disease.

b)    Workplace Prevention Programmes

The Workcover Workplace Occupational Rehabilitation Programme model can be readily adapted for occupational health and safety prevention.  A workers’ compensation Regulation could compel employers, employees and their unions to jointly develop and agree upon workplace specific preventive programmes in accordance with Guidelines developed by the Occupational Health, Safety and Rehabilitation Council of New South Wales.  A Workplace Prevention Programme could include:

• a written occupational health and safety policy;

• procedures for implementing statutory requirements, codes of practice, guidelines and workplace agreements relating to occupational health and safety;

• a list of jointly agreed occupational health and safety advisers, consultants and service providers;

• predetermined procedures to be followed in the event of an issue being raised which cannot be resolved through regular channels, such as the workplace occupational health and safety committee, due to either disagreement, lack of access to decision makers, or a lack of technical expertise.  For example:

Step one:  seek advice from appropriate advisory personnel, within the Department of Industrial Relations and Employment, other government advisory services, trade unions, etc.;

Step two:  if necessary, contract an agreed consultant to advise on a solution eg., ventilation system, noise control, etc.;

Further steps:  would include implementation strategies following joint consideration of any advisory/consultant reports, dispute resolution and evaluation procedures.

Consideration should be given to establishing accreditation and re-accreditation procedures for occupational health and safety services and consultants.  It would be in the interest of all parties to establish and maintain a high standard of occupational health and safety services.

After all workplaces had developed and implemented preventive programmes to consolidate and co-ordinate the activities of workplace occupational health and safety committees, it would become more efficient and effective for the Department of Industrial Relations and Employment to provide more indirect services, to prioritize and target those workplaces not complying, and to adopt a pro-active, preventive and advisory role in the workplace.

c)    Premium Incentives

To demonstrate its recognition of the necessity for a dedicated commitment to prevention, the government must offer significant workers’ compensation premium reductions to employers who instigate effective work place prevention programmes.  In this way, employers and managers are encouraged to consider measures not only for reducing claims costs (considered on an annual basis), they are also encouraged to eliminate hazards which may, in the long run, give rise to chronic diseases.  Initiated by exposures to noise, respirable dusts and chemicals, chronic (delayed) effects on health may be recognised for what they are, and thus be reflected in workers’ compensation statistics, only decades later.  Accumulation of this hidden and unfunded debt can be averted only by anticipation and adequate preventive measures, beginning NOW.  Incentives would be particularly important in smaller workplaces where resources which can be directed towards occupational health and safety prevention are limited.

2.3    Additional Prevention Strategies

a)    Industry Wide Surveillance and Targeting

In addition to the above strategy, focussed upon true, joint workplace self-regulation, the Inspectorate and seconded experts, e.g. insurance risk assessors, could utilise the improved statistical and data base information available though the State Compensation Board to form teams that target specific industries, workplaces or hazards.  These expert teams would communicate with management at the highest level in providing comprehensive recommendations aimed at improving all aspects of occupational health, safety, rehabilitation and workers’ compensation claims management.  Should this multi-faceted advice not be heeded within a specified time period, a strong enforcement approach should be adopted through the implementation of the appropriate occupational health and safety legislation.  Responding to priorities set by annual statistics, a high public profile should be adopted in targeting specific industries and workplaces.  This will encourage a flow-on effect throughout the entire industry sector specified.

b)    Rehabilitation Providers are Not Primary Prevention Experts

As outlined above, steps must be taken to put full emphasis on occupational health and safety prevention, thus complementing commitments already existing under the Workplace Rehabilitation Programmes.  This is essential to redress the current inadequate situation, whereby Rehabilitation Providers are providing the bulk of primary preventive advice on the entire range of occupational health and safety issues to employers.  Whilst these multi-disciplinary providers may well be appropriately qualified to advise on ergonomic and related issues in an office environment, they are clearly inadequately qualified to advise in specialist areas of safety engineering and occupational hygiene, especially in high-risk primary and secondary industry environments.

c)  Training of Workplace Health and Safety Committees

Training is one of the most effective ways of creating permanent change in the workplace.  The ongoing training of workplace occupational health and safety committees is a corner stone to prevention of workplace incidents.  Participatory learning has been demonstrated to be the most effective method of training workers.  Of necessity, a participatory learning approach involves the expenditure of considerable time, bearing in mind that attendance at an occupational health and safety course may be the first educational experience of this type for many of the participants.

As to the current four day accredited programme, a well prepared trainer can scarcely convey more than an outline of the skills and information prerequisite to the successful operation of a workplace health and safety committee.  For responsible teaching, these matters need also to be related back to the workplace.  Thus, the Labor Council has consistently sought the introduction of a five day basic course; especially to allow adequate consideration of how principles should be applied, in a context prompted by specific hazards in individual attendees’ places of work.

A five day programme would have the additional benefit of bringing New South Wales into line with the standards applying in Sweden, Denmark, Norway, Finland and France, as well as the state of Victoria.

d)    Further Training

Because of the fundamental importance of occupational health and safety training as a mechanism for reducing occupational ill-health, the Labor Council sees the need to extend such training beyond that what is provided to members of occupational health and safety committees or training provided pursuant to s.15(2)(c) of the Occupational Health and Safety Act.

In particular, the following areas require urgent attention:

• Induction Training: the Labor Council calls upon the New South Wales government to legislate so as to require every employer to provide appropriate induction training, where appropriate, to every worker upon recruitment and to any worker changing his/her normal working station or resuming work after a break of two months or more.

Such training should include the health and safety hazards to which employees may be exposed in their employment and the measures taken for the prevention of untoward effects of hazardous materials or processes.  Such training is to be on the basis of paid time off, and in addition to any other provision relating to paid leave;

• Specific Hazard Training: the Labor Council supports the development of hazard training modules on specific occupational health and safety problems in industry, such as manual handling and industrial noise.

The costs involved should be met by the Federal and State governments on a joint basis.  Attendance at such training sessions should be on the basis of paid time off and in addition to any other provision relating to paid leave.  The Labor Council calls upon the New South Wales government to legislate so as to allow every worker to attend appropriate specific hazards courses; and

• General Training: the Labor Council calls upon the New South Wales government, in consultation with the Federal government, to embark upon a general campaign aimed at raising community awareness of occupational health and safety issues.

Such a campaign should include the introduction of occupational health and safety modules into secondary and further education.

3.    Administration

3.1    Integration of Services

a)    Need for Unification of Services and Provision of Independent Resources

The Williams Report¹⁶⁸, like the (UK) Robens Report¹⁶⁹ before it, recommended that occupational health and safety legislation should be administered by a unified body which had no other responsibilities.  In New South Wales, occupational health and safety legislation is generally administered by the Department of Industrial Relations and Employment though, regrettably, the Coalfields Division and the Mines Inspection Division were recently transferred back to the Department of Mineral Resources.  Occupational health and safety services are clearly not yet integrated, and must compete for financial, human and legal resources within the Department of Industrial Relations and Employment.

The Occupational Health, Safety and Rehabilitation Council of New South Wales also suffers as a result of having inadequate independent resources and is consistently frustrated and hindered as it attempts to carry out statutory duties.  It is noted, with serious concern, that the Occupational Health, Safety and Rehabilitation Council has been comprehensively ineffective in relation to facilitating the development and implementation of standards.  Such ineffectiveness derives in part from the intransigent position adopted by employers in relation to regulation of their activities but is also due to the lack of adequate resources available to the Council.

A serious problem was created through the delegations of twin responsibilities to one person to act simultaneously; both as Chairperson of the Council and as Co-ordinator of Occupational Health and Safety Services within the Department of Industrial Relations and Employment.  The part-time Council can too readily be manipulated to serve administrative purposes of the Department rather than having its independent role, in reviewing legislative requirements and advising the minister on health, safety and welfare issues.  The successive stages of draft legislation falling within Council’s ambit should therefore, and without exception, be presented for its consideration immediately prior to being forwarded to the minister.

The most recent example of the bypassing of Council occurred in July, 1988 when the amended draft First Aid Regulation was forwarded to the minister directly by Departmental officers, despite the Regulation’s origins within Council.  Since the Council is the peak advisory body to the Minister of Industrial Relations and Employment on occupational health, safety and rehabilitation matters, such action becomes counterproductive because it weakens the trust and confidence on which tripartite cooperation depends.

b)    Proposed Reorganisation of Services and Structures

There is an immediate need for continued support from the New South Wales government of the restructuring and reorganisation of occupational health and safety services within the Department of Industrial Relations and Employment in order to achieve the required shift towards the provision of a unified and pro-active service.  Accordingly, the proposed integration of the Division of Occupational Health with the Division of Inspection Services should proceed with haste.  Closer links should also be established with the State Compensation Board.

The problems outlined above may be overcome effectively and realistically through a three stage process of modification to existing government and tripartite structures, as here outlined:

• Occupational Health and Safety Commission:  The Labor Council calls on the New South Wales government to amend the Occupational Health and Safety Act to provide for the establishment of a tripartite Occupational Health and Safety Commission as an independent statutory authority.  Such Commissions are operating successfully in Victoria, South Australia and Western Australia.  Such a tripartite Commission would be independent of departmental inspectorate functions and would therefore be able to evaluate such services objectively and ensure the adequate enforcement of standards.  Also, the Commission would not be hampered by administrative and staff control problems and would be able to direct all its efforts into performing its policy-making, monitoring and advisory functions;

• Occupational Health, Safety and Rehabilitation Authority:  In the longer term, the integration of services recommended by Williams should be completed through the establishment of a separate authority to administer all legislation pertaining to occupational health, safety and rehabilitation in New South Wales.  Problems such as industrial deafness, dust exposure and back injuries are not unique to particular industries.  An integrated Occupational Health, Safety and Rehabilitation Authority would allow for a more efficient use of the State’s health and safety resources as well as encouraging the development of a more sophisticated service with all its energies, expertise and resources harnessed and directly toward a common objective.

(This two stage approach to reforming the administration of occupational health and safety in New South Wales would avoid the problems experienced in the United Kingdom when, to the detriment of both, these tasks were tackled simultaneously after the passage of the Health and Safety at Work Act in 1974.)

• Integration of Occupational Health, Safety, Rehabilitation and Workers’ Compensation:  The introduction of Workcover in 1987 heralded the way for the integration of all the above services in terms of administration, operation and funding; with the provision of effective and cost-efficient services in New South Wales as the ultimate goal.

3.2    Funding

The Labor Council notes that the Occupational Health and Safety Act was amended in May 1985 to provide for the insertion of Division 3A.  This provides for the establishment of an Occupational Health and Safety Education and Accident Prevention Fund consisting of:

• fees paid (pursuant to s.27A), and

• any money provided by Parliament for the purposes of the Fund or required to be paid into the fund by or under the Occupational Health and Safety Act or any other Act (s.23B(2)).

The Fund may be applied by the minister for the purpose of:

• occupational health and safety education; and

• ensuring or prompting the health and safety of persons at places of work.

The Labor Council views with serious concern the inability of the Occupational Health, Safety and Rehabilitation Council to progress this initiative which would significantly contribute towards the prevention of occupational injury and disease.  No Fund has yet been established, no training or promotions have been conducted pursuant to the provision and, indeed, no decision has been taken concerning the method of the Fund’s operations.

Many of the initiatives recommended in this paper, from workplace preventive programmes through to an independent statutory commission and an integrated authority, could be financed through such a Fund.  Alternatively, part of workers’ compensation premiums or a percentage of pay roll tax could be utilised to fund occupational health and safety services in New South Wales.  Work environment funds, based on a payroll tax, have allowed Sweden and Finland to fund initiatives which have pushed them to the forefront of occupational health and safety in the world.

3.3    Accreditation and Re-accreditation of Rehabilitation Providers

The Labor Council reaffirms its strong support for the process of rehabilitation and of the concept that rehabilitation should be seen as the normal process immediately following a workplace accident or injury.  The Labor Council strongly supports the recognition of the dual objectives of occupational rehabilitation, namely to return injured workers to work and to normal community life – and calls on the government to ensure the equitable reconciliation of these dual objectives in all aspects of the administration and operation of the rehabilitation system.

It is essential, therefore, that appropriate attention be given to the following:

• tripartite approval of accredited rehabilitation providers;

• vigorous monitoring and evaluation of providers subject to tripartite endorsed criteria;

• allocation of sufficient resources within the Division of Rehabilitation Services to ensure efficient monitoring of providers.  To ensure a cost-effective rehabilitation system, it is paramount that a data base be established for re-accreditation purposes which is capable of recording appropriate rehabilitation outcome information that may be applied to performance criteria assessments of providers;

• allocation of sufficient resources and the establishment of appropriate criteria to ensure that vocational retraining is a realistic proposition for injured workers who are unable to resume their previous job or activity, or where no suitable job is available.

3.4    Specific Issues

The above discussion concerning the administration of occupational health and safety in New South Wales has concentrated upon concepts of service and structural reforms.  There are, however, many additional problems associated with the current administration.  These include:

• The role of the government health and safety inspectors must be substantially expanded to encompass the enforcement and preventative function, so as to implement adequately the Occupational Health and Safety Act.  As discussed in Section 2.1, this can be achieved through continued upgraded training of inspectors, drawn in future from a broader range of experience and qualifications.  Further, the Inspectorate must be developed to anticipate actively before, rather than react after, the event; and to be welcomed in that role.

• An inadequate number of prosecutions under the Occupational Health and Safety Act are being undertaken by the Department of Industrial Relations and Employment.  More are required, both pro-actively and particularly where blatant, repeated breaches have occurred, to encourage general compliance and reduce the high rate of accidents, injuries and disease.  There is a vicious circle; until the Act is tested and established, prosecutions will succeed more readily under the umbrella Factories, Shops and Industries and Construction Safety Acts.  However, so long as most prosecutions are occurring under these Acts, that testing and the establishment is further delayed.  The Department must implement the philosophy of the primacy of the Occupational Health and Safety Act through all levels of the Inspectorate and enhance legal resources accordingly.  Prosecutions under the prescriptive Acts results in the imposition of grossly inadequate penalties in instances of serious injuries and death.

• Adequate resources must be provided within the Department of Industrial Relations and Employment to improve the vigilance applied in considering licence applications, such as for asbestos contractors.  The current system presents a mockery of the principle of licensing.  Required improvements are not simply a matter of adequate staffing and resources, but also of efficiency and the maintenance of high expectation to make the principle of licensing meaningful.

• Measures for ensuring health and safety in relation to aspects of usage, storage and transport of industrial and agricultural chemicals are inadequate.  Many problems arise from the fact that several pieces of legislation which relate to chemicals exist and are administered by various government departments in turn, including the State Pollution Control Commission, the Department of Industrial Relations and Employment and the Department of Agriculture.  A consistent, unified system is required.  The Labor Council has called for an independent inquiry into the chemical industry to be undertaken as soon as possible and calls on the government to regulate agricultural chemicals through the tripartite Occupational Health, Safety and Rehabilitation Council of New South Wales.

4.    Legislation

The Occupational Health and Safety Act 1983 placed a broad statutory responsibility upon employers to provide a safe and healthy work environment.  However, due to a lack of prosecutions and test cases, this general ‘Robens style’ legislation remains largely ineffective.

The need for improved enforcement of the Act has been argued above.  Further, the existing umbrella legislation and associated Regulations must be comprehensively reviewed and repealed.  These must be replaced by a comprehensive set of Regulations and Codes of Practice under the Occupational Health and Safety Act.

The Occupational Health and Safety Act and associated Regulations require a number of amendments to address anomalies and to improve effectiveness in the workplace.  Though too numerous and detailed to address fully in this paper, key aspects are outlined below:

4.1    Amendments to the Occupational Health and Safety Act

Consistent with its Occupational Health and Safety Policy, the Labor Council calls on the New South Wales government to amend the Occupational Health and Safety Act to provide for:

• The establishment of a tripartite Occupational Health and Safety Commission as a statutory authority (refer to earlier discussion).

• The imposition of a legal obligation upon employers to produce a written occupational health and safety policy in consultation with the relevant unions (refer to earlier discussion).

• The imposition of prescribed minimum penalties where i) the breach of the Act in question has resulted in serious injury or death; or ii) the breach is a repeat offence.

• Recognition of the legitimate role of unions in the formulation and implementation of health and safety standards.  Unions are the representative agents of employees involved in the development of occupational health and safety policies and appropriate training.  It is absurd and counterproductive to fail to acknowledge their participative role in workplace joint consultation on these matters.  This objective to be achieved by:

• • appropriate recognition of the role of unions under s.5 (objects of Act);recognition of unions registered under the Conciliation and Arbitration Act in addition to those registered under the Industrial Arbitration Act;
  • the right of entry by union officials to inspect the workplace in relation to health and safety issues;
  • provision for funds to be available to unions and, where appropriate, employers, from the Occupational Health and Safety Education and Accident Prevention Fund, such funds to be used for education and the production of resource material;
  • recognition of the role of union elected health and safety representatives to function in a manner that is complementary to occupational health and safety committees, as occurs in Victoria.
  • all occupational health and safety representatives and committee members to be accountable to the membership through normal trade union channels.  The method of election for representatives and committees provided for under the Victorian Occupational Health and Safety Act 1985, to be adopted in New South Wales.  Any trade union which has a member who works as an employee in the workplace conducts an election.  Where no union members are present, an inspector may conduct the election.
  •  

In addition to the rights currently available to committee members in New South Wales, representatives to have defined rights including:

• the right to be informed of accidents and reasonable access to the site of an accident;

• freedom of movement with no loss of pay when carrying out necessary or prescribed duties;

• right of access to reasonable facilities including telephone, desk and relevant company safety monitoring equipment; and

• paid leave to attend trade union sponsored health and safety courses.

• the right to stop work in a situation of threat to life or health.  This right to be available to all employees subject to procedures determined by the Occupational Health, Safety and Rehabilitation Council of New South Wales.

• the crime of industrial homicide where identified and known unsafe or unhealthy work practices/conditions result in employee(s) loss of life.

4.2    Alternative Workplace Health And Safety Committee Structures

The Occupational Health and Safety (Committees in Workplaces) Regulation should be amended to allow for the recognition of a range of jointly agreed workplace committee structures.  With the agreement of all parties, the most appropriate structure for a particular work environment could then be established.  The current structure has proved too limiting and is inappropriate in workplaces where decision makers of the appropriate level are not logistically accessible to each and every committee, including many public sector organisations.  In such organisations, a multi-tiered committee structure is necessary to avoid lack of results and delays in implementation which can quickly demoralise an otherwise effective committee.  Such alternate structures, established in the spirit of the legislation with joint union/management agreement, are working successfully within the Department of Industrial Relations and Employment, the University of Sydney and the Department of Family and Community Services.

4.3    Regulations and Codes of Practice

The Williams Report recommended that the Occupational Health and Safety Act should progressively replace provisions of associated legislation such as the Factories, Shops and Industries Act and the Construction Safety Act.  Since 1983, virtually no work has been undertaken along those lines.  Very few Regulations have been made under the Occupational Health and Safety Act and amendments to associated legislation to bring about a more unified system have been negligible.

The Labor Council Occupational Health and Safety Policy envisages the adoption of a preventive strategy requiring the development of standards and criteria through which unions may define a workplace that is free of hazards to health and safety.  It was recognised that specific Regulations and Codes of Practice need to developed to cover problems associated with, for example, physical hazards, chemical hazards, biological hazards and new technologies.  The Labor Council calls on the New South Wales government to give high priority to the development of such standards.

A comprehensive range of Regulations and associated industry specific Codes of Practice must be developed.  The Labor Council regards the following as priorities:

1. Notification of Accidents Regulation: to enable “umbrella” provisions for the notification of accidents, dangerous occurrences and work-related illnesses in workplaces under the principal Act and associated legislation;

2. Hearing Conversation Regulation: compelling employers to introduce hearing conversation programmes where time weighted average noise levels exceed 85 dB(A);

3. Workplace Substances Regulation: addressing testing, labelling, usage, storage and provision of information in relation to chemicals and other potentially hazardous substances used in workplaces;

4. Cash Handling Regulation: requiring “at risk” industries to prepare and comply with joint industry specific Codes of Practice, in accordance with exiting guidelines developed by the Occupational Health, Safety and Research Council in 1985; and 

5. Manual Handling Regulation:  addressing the high rate of back and soft-tissue injuries comprehensively whilst providing protection via appropriate non-discriminatory weight lifting limits.

Due to the limited resources available to the Occupational Health, Safety and Rehabilitation Council of New South Wales and the competition for legal resources within the Department of Industrial Relations and Employment, as discussed above, there has formed a backlog ‘in the system’ ‘of some forty draft Regulations and proposed amendments to occupational health and safety legislation.  This situation is clearly unacceptable, particularly when consideration is given to the current workplace environment in New South Wales, with its ongoing high accident and injury rates.  These outstanding regulatory matters should therefore be treated expeditiously.

5.     Conclusion

The Labor Council is convinced that implementation of the strategies, initiatives, and administrative and statutory reforms outlined in this chapter would cause:

• the main thrust of the Williams report to be comprehensively fulfilled, lifting New South Wales to the forefront of Australian States and into line with such nations as Sweden, Finland, West Germany and Canada;

• the current inequities which exist in the provision of occupational health and safety protection and services to be readdressed; and most importantly,

• a substantial reduction in the unacceptable human toll and the cost burden associated with preventable accidents, injuries and disease.

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1.     Industrial Democracy and Union Activity

Few concepts are as widely misunderstood and, in some senses, as obscure as industrial democracy.  For some it is syndicalism, common sense or utopian fantasy.  And no matter how preachy the arguments are, industrial democracy is not a movement which has conquered the industrial relations community.  Most people have a nagging feeling that they should be in favour of such an idea, but there is also the sense that it is inchoate or unrealisable.

All such reservations require that an examination of industrial democracy should consider some useful working definitions – of what is meant to be achieved through and by the concept.  Any discussion of this sort, if it is to avoid the aridity of theoretical point scoring, needs to consider the here and now – the relevance of the industrial relations questions affecting society.  This chapter will argue that industrial democracy is infused with meaning and significance if it is considered as a process influencing the productivity, job satisfaction, training and wages outcomes in industries and workplaces.  Because those outcomes are vital to the economic progress of this State, this chapter will argue that the New South Wales government should encourage industrial democracy in its own territory – the State public sector – and, as well, its spheres of influence throughout the community of New South Wales.

The industrial democracy literature is populated by three common themes, namely that industrial democracy is a process which will diminish alienation, improve productivity and ensure just rights are achieved at the workplace.  Interestingly, such goals are also the objectives of the trade union movement – to improve the quality of working life; to ensure that some degree of consultation occurs before decisions are taken and implemented; and to secure the justification of those decisions.

In his address to the 1984 Industrial Democracy and Employee Participation Seminar, ACTU Secretary Bill Kelty commented that:

We believe that trade unions are the fundamental source affecting industrial democracy in this country.  We say so for these reasons: trade unions are representative of employees, therefore, to talk about effective redistribution of power to employees must necessarily involve the representation of unions.  Secondly, unions are, in turn, democratically elected organisations representing employees.  Thirdly – and it is in fact important – unions have collective responsibilities and collective commitments.

This is a view with which the Labor Council fully agrees.  The best of trade union activity is directed at achieving a more humanised and productive work environment.  Unions cannot be wished away from that environment no matter how popular such a desire may be in some quarters.  This argument about the centrality of union representation and the responsibilities which flow from that cuts against those arguments which glorify individualism or syndicalism.  As Kelty points out:

The facts of life are that not every worker can get what they want – not every worker can exercise total power.  Industrial democracy cannot imply industrial anarchy.  It is not an exercise in industrial democracy to have five workers controlling a site in Sydney, preventing other workers work, though they are able to exercise considerable control.  It may, in fact, be in some sense ‘worker control’, but in no sense is it industrial democracy.  In no sense is it the workers collectively determining a view.  For industrial democracy is about the essential ingredients of making majority decisions; about having collective responsibility; for being accountable; and for being responsible to the community.  Democracy in the sense of our system, and industrial democracy in the sense of our system, therefore needs a clearing house, a clearing house by which legitimate demands made by workers can be assessed, priorities can be determined and decisions made – on behalf of all and not just some workers.  Unions are, therefore, the essential mechanism through which that clearing house can operate.

As an aside, it might be noted that, contrary to some perceptions, those industries and workplaces which are poorly unionised are all the worst off by not having ‘clearing houses’ for new ideas and negotiating changes.  As Freeman and Medoff note in their book What Do Unions Do? (at page 169), most studies of productivity find “that unionised establishments are more productive than otherwise comparable non-union establishments”.  This is so because unions can aid the search for ideas from the shop floor, improve communications within a workplace and marshal an understanding of and support for productivity and efficiency changes.

But in saying all this, it is not sensible to pretend that industrial democracy, as a process involving the trade unions automatically leads to sweetness and light.  Processes are useless if they are not attached to hard questions such as managerial decision making, workplace activities and industry competitiveness.  Kelty poses the following questions about workers in a particular workplace:

What happens when new technology is being introduced?  What happens in terms of their own job security?  What happens in terms of who control superannuation funds?  What happens in respect of occupational health and safety?  They are the issues.

Industrial democracy is a process – the process of involvement and understanding – and it must be applied to those issues…  The application must be to real issues, if you don’t apply it to real issues then it has no importance by itself.  There is no importance being consulted if the processes of real involvement are not there.  Industrial democracy is not merely about the constitution of committees, it is about the application of the processes of consultation to real industrial issues.

It follows that discussion about industrial democracy which piously avoids hard ‘here and now’ questions is no more than empty chatter.

In the contemporary Australian and New South Wales context, if industrial democracy means anything, it is about producing a situation where information, consultation, education and training are the means by which workers can understand their workplace, the industry challenges they face and the economic consequences of their activities: understanding that must also require the development of an attempt to implement a strategy aimed at workplace and industry change.  This is in fact what is now occurring in thousands of workplaces throughout New South Wales.

2.    Cultural Change

Among the important lessons learnt in recent years is that there is no single solution to the problems confronting various industries.  Little will be achieved if employers, unions and government either separately or jointly try to focus just on one problem without taking into account all the aspects of a workplace and the overall environment.

For example, the issue of demarcation barriers: experience tends to show that if demarcation is singled out as a one off issue and negotiations take place between the parties purely on that issue it is most unlikely to succeed.

However, if demarcation is tackled within the context of the whole of the workplace, there have been some worthwhile experiences which suggest that significant change can be made.  By this is meant agreements which contain provisions about commitments to jobs, upgrading skills through training programmes and wages based on skills acquired – thus providing for a career structure.  This may lead to changed work organisation, including new supervision and management structures, which can provide a framework and incentives for people to change traditional work practices.  The focus in this context is on an industrial relations culture that is concerned with managing change, rather than the negative conflict culture that is traditionally experienced.

Such an approach, as outlined above and throughout this chapter, is basically one of major cultural change in industrial relations.  Given the traditional pattern of both management (based on its Taylorist approach to organising work) and the union movement (schooled in responding to an authoritarian management structure), it would be wrong to imagine that such a culture can be created overnight.

There is no such thing as a quick fix.  However, given the right approach as in embodied herein, worthwhile change can be much more rapid than is often imagined.  This has been demonstrated already in many workplaces.  The ACTU document Australia Reconstructed comprehensively expands on this theme.  Whether or not all the specific conclusions and recommendations of that document are appropriate, it is undoubtedly the case that Australian Reconstructed demonstrates how far the union movement has come in embracing comprehensive workplace and industry changes of a fundamental kind.

3.    Job Design

A major problem with traditional industrial relations structures, either at the central or local level, has been the inability to focus on what are often the real problems and issues below the surface of a dispute.  In most disputes there are many contributing issues and there usually exist a wide variation of reasons and opinions within the workforce as to why particular action occurred.  One factor sometimes overlooked is the way work is organised.

Traditional methods of organising work within authoritarian hierarchy structures – involving de-skilled, often powerless and debilitating daily experiences – are without doubt a major cause of frustrations leading to industrial action.  There is some point to the proverb popular in Haiti: “If work were any good, the rich would have cornered it long ago”.  This story of work monotony is borne out on numerous occasions when people from the same workplace have been involved in seminars to discuss their problems.  Sometimes dozens of issues are highlighted, many of which have never been brought to the surface before and many of which are often not appreciated by management.

The Labor Council argues that industrial democracy processes should invite a comprehensive approach to job design and changes to hierarchical structures.  Not only is change in this direction intrinsically worthwhile, it is also economically and industrially sensible.  One of the lessons increasingly appreciated by the trade unions concerning Australia’s industrial culture is that world markets demand high quality, reliability, fast delivery times and flexibility.  This requires a workforce which is more skilled, co-operative, with access to important information and decision making and with a clear understanding of the short and long term goals of an industry. 

Ironically, modern technologies require of workers greater skills and initiatives: such requirements are increasingly in conflict with the old Taylorist, authoritarian method of organising work.  Strict top/down supervision with minute divisions of labour and narrow functional tasks are counterproductive to the needs of nearly all industries.

Any approach to the workplace which ignores the need for evaluation of job tasks, the total system of work, the industry environment, the skills required now and into the immediate future, the skills development of the workforce and career paths must be myopic and be industrially dangerous.  Leaving those big issues untouched at the workplace necessarily invites lower productivity and poorer industrial relations.

The interesting thing that is now occurring is that the union movement and, increasingly, managements are taking these issues seriously – mainly because they are important in meeting the requirements of the modern market place.  The Labor Council suggests that approaches to job design should include the following elements:-

• work oriented to a group;

• learning and skill development as an integral part of work;

• job design encouraging group autonomy and responsibility;

• employee involvement in inputs and outputs for designated tasks;

• constant feedback on performance;

• groups to shape and implement their own discipline;

• there be minimal cycle times;

• technological systems be designed to suit good job design principles;

• work environment to be safe and healthy;

• jobs must provide a pleasant social environment and inter action.

All of these issues pose difficulties.  It is an intriguing aspect of modern Australian industrial life that the consensual approach to decision-making (which industrial democracy involves) is periodically lampooned as a weak managerial style.  In fact, obtaining consensus is frequently the hardest option in an industrial situation.  The Labor Council, however, argues that there is no substitute if the industrial relations parties wish to achieve substantial progress aimed at economic and social goods.

4.    What Matters Now

Since the March 1987 National Wage Case decision and the encouragement by the Federal and New South Wales industrial tribunals of workplace and industry bargaining, there have been substantial changes in attitudes and productivity achievements in many industries.  In response to such changes, the employers have thrown away many of their reservations about worker participation.  One indication of this is the joint statement on participative practices by the Australian Council of Trade Unions (ACTU) and the Confederation of Australian Industries (CAI).

Of more substantial importance are the processes – involving information sharing, consultation and negotiation – concerning new award structures in a number of industries.

For example it is understood that the new Metal Industry Award, expected to be realised in the later part of 1989, will integrate traditional industrial democracy principles (such as consultative councils, joint training committees, information access) and wage based skill levels.  Within the award will be agreed principles and criteria for skills development, including a range of skills.

Each workplace will be able to negotiate the appropriate matrix of skills which will, on the one hand, fulfil the criteria that skills are nationally credible, recognised and portable and, on the other hand, be tailored to suit the specific workplace.

The new restructured awards will have an inbuilt dynamic that is missing from the traditional structures.  Whereas up to now the role of the job delegate and/or organiser has largely been to police an award to see that it is adhered to, the new approach will require a pro-active stance.  Job delegates and their members, along with the full-time union official, will need to play an active role in the setting up of consultative processes and overseeing skill developments in order to make sure that the award works effectively.  In other words, local union activity which is sometimes used in a negative way (in the sense that it can stop things happening) will now be used in a positive way, in the sense that it will assist involvement in changes benefiting both the employer and workers.

In order for such outcomes to be positively realised, employers will need to understand, recognise and support job delegates or union representatives in their activities.  This question was earlier discussed in the chapter reviewing the New South Wales industrial relations system.  This also requires more attention to trade union training and the skills development of such representatives.  This is recognised in many industries (particularly at this time in parts of the metal manufacturing industry) where union and workplace representatives are schooled in industry changes, the need for workplace reform and negotiation techniques.

5.     What the Government Should Be Doing

It follows from what has been outlined in this chapter that the New South Wales government can foster industrial democracy processes as a means of dealing with industrial relations problems through a variety of ways, including:-

• recognising and encouraging trade unions as representative agents of employees;

• supporting legislative changes aimed at encouraging and protecting job delegates;

• fostering participative practices within the New South Wales public sector at all levels;

• providing advice and assistance to public and private sector organisations, including employers and unions, concerning participative practices; and

• becoming relevant to and supportive of those industry changes aimed at enhanced efficiency and more humane work practices which are occurring at various workplaces and industries.

These are options which require (if worthwhile achievements are to be won) hard work and strategic planning.

Of course, as an alternative, there is the option of simply issuing nice sounding statements on industrial democracy and, with a shrug of the shoulders, proclaiming that it is up to the parties to do the rest.  Such an option is a poor course for any government.  Besides the fact that the New South Wales government, as the major employer in the State, cannot pretend that pamphlet-issuing is the limit of its responsibilities in this field; it is surely incumbent on a government interested in economic and social advancement to at least encourage industrial democracy practices.  For example, if it is accepted that particular manufacturing industries are hamstrung by outmoded and inappropriate workplace and management attitudes, structures and practices, it follows that it is worthwhile moving to change that situation.  It may be desirable that the parties solve their own problems, but who can deny that government may be able to facilitate worthwhile change?  The Labor Council believes that in no way is it to become entangled with notions of the Corporate State to argue that governments have a major consultative and exemplary role.

Within the New South Wales public sector, other chapters have argued what is the appropriate strategy for the State government to pursue.  So it is unnecessary to repeat and dwell upon those points here.  Nonetheless, it is useful to summarise the position that the New South Wales government can – in its own behaviour, style and practical commitments with regard to its own employees – shape the public agenda and influence the activities in the private sector.  The New South Wales Department of Industrial Relations and Employment’s Work Advisory Unit can play a major role in fostering worthwhile experiences in the public and private sectors.

In sum, if the New South Wales government is to tackle in an effective and comprehensive way any significant industrial relations issues, this will require attention not only to ultimate ends but also to means.  It can be argued that industrial democracy requires real questions and, at the same time, solving problems and winning improvements requires industrial democracy.

1.     Introduction

This chapter has been prepared as a collaborative effort by the Labor Council of New South Wales and the New South Wales Region of the Australian Trade Union Training Authority (TUTA).  As ‘trade union training’ is the most commonly used expression for union education and/or training, it will be used throughout this submission.

The Labor Council’s policy on trade union training states that:

Labor Council affirms that ‘the need for continuing education and training related to scientific and technological development and the changing pattern of economic and social relations calls for adequate arrangements and calls for leave for education and training to meet new aspirations, needs and objects of a social, economic, technological and cultural character, as recognised in ILO Convention No. 140.

Labor Council believes that the right to paid educational leave should be provided by the employer to all employees for the purpose of training at any level, including general, social, civic and trade union education.

Paid education leave should be available for courses conducted by the Labor Council of New South Wales, TUTA and individual unions and any other recognised training body in New South Wales offering courses sponsored or supported by the Labor Council of New South Wales, TUTA or individual unions.

The provision of such leave and training is absolutely vital to the development of improved industrial relations and a better skilled workforce.  Because so much about trade union education is misunderstood, this submission will concentrate on an exposition of the trade union training experience in New South Wales.

2.    What Is Trade Union Training?

In this submission:

Trade union training is the provision of knowledge and skills to unionists to enable them to carry out the functions of their positions within their trade unions.

The definition prescribed by the Trade Union Training Authority Act 1975, an Act of the Australian Parliament, is:

Trade union training means technical or practical training capable of advancing and developing knowledge and skills in fields connected with the powers and functions of trade unions or the powers, functions and duties of officers or officials of trade unions.

3.    Who Provides Trade Union Training?

In New South Wales there are two sources which provide trade union training.  The various elements of the union movement is one and TUTA is the other.

a)    The Labor Council of New South Wales

An important source of training for unions is the Labor Council’s occupational health and safety training unit.  That Unit’s training programme is dedicated to conducting a course which is accredited under the terms of the Occupational Health and Safety Act, with some seminars on specific hazards conducted from time to time (this is discussed in more detail later in this chapter).

b)    The Major Unions

Most of the major unions (in terms of membership numbers) conduct trade union training for their members.  For this purpose, those unions employ either full-time or dual function training officers, their secondary function being industrial or administrative in nature.

c)    The Australian Trade Union Training Authority

Established by an Act of the Australian Parliament in 1975, with the support of all political parties at that time, TUTA is the largest provider of trade union training in Australia.  TUTA-NSW provides about 25% of the total TUTA training for Australia through the wide variety of courses relevant to its charter.

At the Clyde Cameron College in Wodonga, Victoria, TUTA provides union management, advocacy and trainer courses, as well as courses for advanced workplace representative.  These are intensive residential courses mainly aimed at training full time officials and very active unionists.

TUTA, as a statutory authority, has its policies determined by the tripartite Australian Council for Union Training, with similarly constituted advisory Councils in each State.  The training programmes are conducted and administered by employees of the Authority.

d)    Other Sources

Courses conducted by the Department of Technical and Further Education (TAFE), some colleges of advanced education and some universities contain elements of relevance to the education and training of unionists.  These courses are mostly targeted at persons who will occupy a managerial or supervisory role and do not necessarily equip unionists to carry out their functions within their union.

Similarly, some private training institutions provide elements within their courses which are relevant to union officials.  However, their training market is managers and supervisors and they do not provide union-specific courses.

4.    What Training Is Provided?

a)    For Workplace Union Representatives

By far the largest type of trade union training conducted either by TUTA or the major unions in New South Wales is that of providing knowledge and skills for the workplace representatives of unions and their members.

The objectives of TUTA’s Job Representative 1 course for ‘newly elected, inexperienced or untrained unionists’ states:

The course participant, on completing the course:

1. Will have sufficient competency with confidence to be able to:

• Effectively deal with the grievances of any of the job representative’s fellow unionists,

• Recruit new unionists,

• Manage the union subscriptions of the job representative’s fellow unionists,

• Read an award covering the job representative’s fellow unionists,

• Provide advice to unionists (with guidance from a union officer where appropriate) on the provisions of the award and relevant industrial legislation,

• Communicate effectively with the union office and officers,

• Participate in industrial relations business affecting more than one union at the job representative’s workplace,

• Effectively represent the interest of the job representative’s fellow unionists on appropriate workplace committees,

• Conduct a job meeting of fellow unionists, and

• Report effectively to a workplace meeting.

2. Will have an awareness and knowledge of:

• The trade union movement’s origins,

• The trade union movement’s general policies,

• The trade union movement’s role in the industrial and social fabric of Australia,

• The origins and operation of the Australian industrial relations system,

• Wage fixation principles,

• The trade union movement’s policies and activities in connection with wage fixing, work-skilling, work structure and workplace conditions,

• The trade union movement’s future strategies for improving the operations of trade unions, and enhancing the lifestyle of trade unionists and their families,

• Occupational health, safety and rehabilitation statutory entitlements and the trade union movement’s policies about occupational health, safety and rehabilitation.

The subject matter of the syllabus reflects these objectives.  The major unions’ training for workplace representatives reflects the same course content, although greater emphasis is placed on their own union’s rules, organisation, and administration and policies.

TUTA’s second level workplace representatives course and those of the major unions builds upon the first level subjects and provides training in industrial issues as they affect workplace unionists.

The third level course conducted by TUTA is an intensive course for experienced workplace representative members of unions’ committees of management and councils and inexperienced organisers which provides knowledge and learning about industrial issues, the how and why particular issues have emerged, union policies on the issues as well as a study of the industrial relations system and procedures.

‘Union Communications’ is a skills course aimed at improving the skills of experienced workplace representatives, members of committees of management and councils and new organisers in the field of public speaking and in meeting reporting and procedures.

The duration of the major unions’ courses above varies between two and four days.

b)    For Workplace Occupational Health and Safety Committee Members

The two most significant providers of these courses for unionists are the Labor Council of New South Wales and TUTA.  Some of the major unions also provide an occupational health and safety course.

TUTA’s and the Labor Council’s occupational health and safety programmes are integrated.  By mutual arrangement, the Labor Council conducts a course which is accredited by the New South Wales Occupational Health, Safety and Rehabilitation Council in Sydney and Parramatta.  TUTA and the Labor Council jointly conduct that same course in rural cities throughout the State.

An Advanced Occupational Health and Safety course is conducted by TUTA which provides additional information, knowledge and skills to that which has been gained in the former course.

While the target participation is workplace occupational health and safety committee members (including management representatives who are unionists), unionists who are aspiring committee members are also admitted.

c)    For Migrant, Women, Aboriginal and Young Worker Unionists

Introduction to Unionism courses are conducted by TUTA for migrants, women, Aboriginal and young worker unionists.  Each type of course outlines the industrial relations system and employers’ and employees rights and obligations under it, as well as on issues affecting each of the groups.  The role of the union movement and rights and obligations as a member are also covered.

d)    For Members of Single Unions

As referred to earlier, the major unions conduct trade union training courses for their own membership.  TUTA also conducts courses for single unions upon request.  These courses mostly follow a standard format which essentially is an introduction to the client union’s rules, organisation, administration and policies and that union’s role in the union movement and the industrial relations system.  The relevant award provisions may also be covered.

Infrequently, TUTA will provide a union with a one day seminar covering an industrial issue of relevance to that union’s members.  It is stressed that these courses are conducted by TUTA on the condition that they do not become a decision making forum and that student-related costs are borne by the union.

e)    For Unionists in a Specific Industry, Enterprise or Establishment

A variety of industry, enterprise or establishment courses are conducted by TUTA.  The types of courses are described below.  The course type described in generally applicable to each of the categories:

• Workplace Representative:  similar to Job Representative 1 with emphasis on industry and/or award matters.  Three or four days duration is the norm;

• Industry Development and/or Industry Restructure:  this covers a stocktake of the industry, its economic plight and challenges, the changes required or happening within the industry to meet economic circumstances and the challenges to unionists in adapting to industry change while preserving and protecting their interests.  Two days is the most common duration at present.  It is recognised that the skills from the Job Representative courses, particularly reporting to meetings and meeting procedures, are vital to the course participants’ appreciation of the syllabus and subsequent presentation to their membership.

• Union Amalgamation:  union amalgamations are being formed on an industry basis so these courses are classified as industry.  Usually two days in duration, the course examines the respective unions’ rules, organisation and policies and the proposed substitutions.  They are aimed at workplace representatives and rank and file unionists.

• Specific Issues:  infrequently conducted, these courses usually involve a specific issue affecting an industry with several unions where the participants can receive information from external sources and digest it before reaching conclusions within their own forums separate to the course.

Industry courses (to shorten the title) are usually initiated by the Labor Council or a Labor Council group and the course design arranged with TUTA.

TUTA has commenced a national programme to service the Industry Development/Restructure courses.  The ACTU is co-ordinating with TUTA staff appointed for the task with a corresponding involvement at State Level.  TUTA-NSW, particularly its Newcastle office, has pioneered this type of course.

f)     Other Courses and Seminars

Many unions provide short seminars for their officers, committee and council members and workplace representatives.  Little information about them is available.

TUTA conducts one or half day seminars on many issues which affect unionists as the need arises or a demand is perceived.  Such issues include:

• Pending or enacted industrial legislation
• Equal employment opportunity
• Affirmation action
• National and State wage fixation
• AIDS in the workplace – an industrial hazard?
• Child care for workers
• ‘Australia Reconstructed’.

These seminars attract unionists from all levels of the union movement.

5.     Who Attends Trade Union Training?

The people who attend trade union training course fall into the following categories:

1.   Unionists

These may be grouped as:

1. Unionists who have no official position,

• Workplace union representatives,

• Workplace occupational health and safety committee representatives, and

• Unionists of group (a) who aspire to group (b) or (c) and who wish to prepare themselves for a position.

2.   Union Leaders

The groups for these are:

• Union officials who hold (by election or appointment) a full-time union position such as secretary, industrial officer, researcher or organiser.

• Union officials who hold (usually by election) a part time position such as executive member, committee of management member, councillor, sub-branch president or sub-branch secretary.

The numbers of unionists attending the major unions’ courses are not available.  The table below lists TUTA-NSW provisional participation rates for the fiscal year ended 30 July 1988.

6.    Where Is Trade Union Training Conducted?

The major unions conduct their training in rooms within their own buildings, in hired rooms at locations away from their main or sub-offices or occasionally at training rooms hired for the purpose.  The locations away from the unions’ central offices depend on where the membership resides.  These do not necessarily coincide with TUTA’s locations listed below.

TUTA-NSW has purpose built training facilities in Sydney, Newcastle and Canberra, the latter being used for unionists in southern New South Wales, as well as for those residing the Australian Capital Territory.

In addition to their own facilities, TUTA arranges and conducts trade union training courses in up to twenty rural cities and towns throughout the State, in Parramatta and in several outer suburban areas of Sydney hiring suitable premises for the purpose.  The external locations chosen are centres of population for the surrounding district.

7.     Which Sources Support Trade Union Training?

Tangible support is given by the provision of the capital items of property and equipment and the recurrent expenditure on materials for courses, staff salaries, rents, the student related costs of lost wage reimbursement, travel and accommodation where necessary and other miscellaneous operating costs.  This tangible support is provided by the major unions for courses which they conduct for their members and by annual appropriations by the Australian government in the case of TUTA.  It should be noted that TUTA’s appropriation for 1988/1989 has been reduced by about 10% compared to the previous year.

For both TUTA and the major unions, indirect support for trade union training is provided by employers who grant their employees paid trade union training leave thereby encouraging their employees to take up the opportunity to become knowledgeable and proficient in the functions of their positions within their unions and at the workplace.

Almost all public sector, Australian and State government employers, departments, authorities and local government, and many of the major private sector employers provide paid trade union training leave for their employees.  However, payment for relief staff, as is discussed below, continues to be a major problem.

Private sector paid trade union training in many cases is prescribed by an industrial award prescription or a departmental decision.  Private sector paid trade union training in many cases is prescribed by an industrial award but is also granted by numerous employers where there is no award prescription.

The time constraint required to prepare and lodge this submission does not enable a listing of those private sector employers who grant leave free of award prescription.  However, Appendix 4 provides a list of Federal and New South Wales awards and agreements which (at December 1987) prescribe trade union training leave.  A copy of the text of each of those trade union training leave provisions is available from the Regional Director, New South Wales, Australian Trade Union Training Authority.

One point worth emphasising here is that the provision of relief staff for trade union training courses is directly relevant to providing access to such training.  The Labor Council policy in this area comments that the:

The Labor Council notes with concern the frustrations experienced by some unions where employers have failed to provide casual relief for staff seeking leave to attend trade union courses.  This has occurred in the public sector where a number of representations have been made by the Labor Council to the Premier and the Minister for Industrial Relations on behalf of affiliates.

Labor Council calls on the New South Wales government to provide adequate casual relief for employees attending trade union courses.

The New South Wales government, as a high priority, should ensure that reasonable budget allocations are provided by departments and statutory authorities to ensure that the so-called right of workers to trade union training is not dashed by the lack of funds and resources.

8.    Employer Attitudes to Trade Union Training

It has been the experience of TUTA and the major unions that many employers have a positive attitude to their workplace union representatives, through trade union training, becoming skilled and knowledgeable in their union role in the workplace.  The impression most commonly given by those employers is that communications improve, avoidable disputes do not occur and confrontation is replaced by consultation.  Of course, claims by unionists are still made and grievances arise which are pursued with vigor in the workplace.  Employers admit that the settlement of claims and grievances arise which are pursued with vigor in the workplace.  Employers also admit that the settlement of claims and grievances with unionists led by trained workplace union representatives is processed better and more efficiently than their previous experiences.  They imply that disputes are less frequent and that productivity and morale is improved.

During the last twelve months, TUTA has conducted industry development/restructure courses for unionists in the establishments of specific employers.  Following the courses, the unions and the respective employers have engaged in negotiations on the restructure of work practices in the establishment.  It is fair to say that the entrenched confrontationist attitude of both parties prior to the training has given way to a more co-operative and productive workplace.  Examples of these establishments are:

Hexham Engineering Pty Ltd
A. Goninan & Co Ltd
Tubemakers of Australia Ltd
Australian Industrial Refractories Ltd
Commonwealth Steel Company
Broken Hill Proprietary Ltd and subsidiaries
Electrolytic Refining and Smelting
Electricity Commission of New South Wales
State Rail Authority

In most cases, the employer initiated discussion with TUTA which, in accordance with its policies, referred the employers proposal to the union movement before designing and conducting courses.

Another area in which employers have co-operated with TUTA and the unions in training their unionist employees is equal employment opportunity linked with affirmative action.

A series of one day seminar/workshop courses have been conducted by TUTA in the last year for employees of:

State Rail Authority
Urban Transit Authority, and
National Roads and Motorists’ Association.

In addition to the foregoing, TUTA has received several enquiries from employers seeking TUTA’s expertise in conducting courses for their employees.  Industry development/restructure courses are the most common type sought with workplace union representatives, the second most common.  As indicated before, these are referred to the Labor Council or relevant unions before TUTA proceeds.  The employers with whom negotiations for courses are currently publicly proceeding are:

Kellogg’s (Aust) Pty Ltd.,
John Fairfax and Sons Ltd, and
ICI Aust Ltd.

On the other hand, employer organisations are reticent about giving public support for trade union training although many officers of those organisations will privately acknowledge the benefit of employers having workplace representatives knowledgeable and skilled in industrial relations processes.

9.    Trade Union Training Scrutinised

Trade union training has been examined, reviewed and scrutinised by and in the course of government initiated reviews and during the course of industrial arbitration proceedings.  Several of these are referred to below.

a)    Report of the Committee of Enquiry into Trade Union Training for the Minister of Employment and Industrial Relations – August 1977

This is a report of a tripartite Committee headed by Commissioner A.S. Paine of the Australian Conciliation and Arbitration Commission.

The Committee’s terms of reference are summarised as:

“The desirability or otherwise of integration (of trade union training) in a general system of industrial relations training .. including employers .. and with the general education system.”

“The role, membership and staffing of TUTA.”

“The costs and methods of financing trade union training”.

In relation to the first term of reference, the Committee recommended that:

Trade union training should not be integrated into a general system of industrial relations training but must be fully conscious of its responsibilities in the area of industrial relations and be seen as part of an ongoing process towards the orderly conduct of industrial relations; and

TUTA courses should provide for greater employer involvement in training activity.  Courses should provide trade unionists with an understanding of the organisation and operation of commerce, industry and the various employer organisations and the manner in which they relate, not only to each other, but also to governments and the community.

TUTA should be retained as an independent training institution and not absorbed into the general education system but there should be a closer relationship established with technical and further education; and 

A system of industrial relations training for unionists and representatives of employers, separately and jointly according to need, should be developed and carried out by TAFE.

On the third term of reference, the Committee recommended that:

Trade union training, as one of many facets of the total education and training system, should continue to be funded by government through the Minister for Employment and Industrial Relations;

The funds to be provided for trade union training should be commensurate with the Authority’s training programme;

The funding of any joint industrial relations training at the Clyde Cameron College should be the subject of discussion between employers, trade unions and government; and

The two issues of paid educational leave and wage reimbursement should not be the subject of tripartite discussions.

The interesting points from the Committee in its second term of reference recommendation are that:

Trade union training should essentially be training to equip trade unionists with the necessary skills, knowledge and understanding relevant to the function required to be performed.  Such training should be essentially technical and practical training;

TUTA conduct a complete evaluation to determine the specific extent of training both as to course content and numbers required by undertaking an analysis of training requirements according to the skills, knowledge and understanding each group or individual requires to conduct his function within the trade union movement.

b)    Report of the Committee of Review into Australian Industrial Relations Law and Systems – April 1985 (the Hancock Report)

This comprehensive review by a tripartite committee headed by Professor Hancock, included ‘Industrial Relations Education, Training and Research’ set out at Appendix IV of its report.  The full text of that appendix is included in Appendix 4.

In relation to trade union training, the report stated:

8. We believe support for education and training in industrial relations is in the interests of the community as a whole and therefore worthy of government funding.  Accordingly, we support the maintenance of the TUTA as an institution designed to improve the skills of trade union officials and the members of trade unions.  The work now being done is beneficial in that is should lead to a higher level of competence in the general body of trade union administrators.  Overall, we consider that the structure of the TUTA enables a satisfactory level of training of union officials and unionists to be undertaken.

9. More generally, we think that the present mechanisms used to deliver training should, in fact, deliver the skills in such a way as to ensure that the participants in industrial relations really understand the importance of their responsibility and the impact their decisions and actions can have not only on the people they represent, but on the community as a whole.  If the community is to spend large sums of money on education and training in industrial relations, it is proper that emphasis should be laid on the necessity for that training to be directed towards improving the standards of living of the community as a whole.  In short, the training should be directed towards ensuring that the participants in industrial relations carry out their responsibilities to the people they represent in a way that recognises the wider area of community responsibility.

c)    Industrial Arbitration Proceedings

Scrutiny of trade union training has arisen from applications to insert into awards provisions for trade union training leave.  Where such applications have been contested, and many have not, industrial tribunals have considered, among other matters, the merits of trade union training.

Of significance amongst arbitrated decisions on trade union training leave is the statement of Mr. Commissioner Sheather of the Australian Conciliation and Arbitration Commission in matters (C.Nos. 1375, 1372, 1373, and 1374 of 1982 concerning four applications “to insert into the various Municipal Officers’ Awards a provision entitling officers to a limited amount of paid leave to attend courses run by the Australian Trade Union Training Authority.”  (See Print F1979).

The Commissioner’s decision referred to the employer’s submission, which (in part) argued that:

The proposal was of benefit to unions and unionists rather than the normal work relationships of employers and employees and there should be no imposition on employers for something that does not assist the prime relationship for which the employee is employed.

In considering the submissions, the Commissioner stated:

…it is pertinent to note at the outset that unionism is an integral part of the Australian industrial scene and indeed is an essential feature in the objects and operation of the Conciliation and Arbitration Act.  The concept of improved training and education of trade unionists by a central training authority initiated by a Labor government and continued by a Liberal/CP government and TUTA has established a recognised role in industrial relationships.

The courses provided by TUTA cover a broad range including developing the students’ understanding of the employees’ rights and responsibilities, award entitlements and requirements, practical methods of resolving differences between employee and employer, the role of employee and employer associations and industrial tribunals, basic understanding of economic and social structures in the community and industrial relations issues in particular industries.

This form of education not only benefits the individual student but where the student is a representative of fellow workers as an officer of the union, the improved capacity to communicate effectively the viewpoints of employees and responses of employers, can in my view only lead to improved industrial relationships in industry.

It is possible that some representatives on the employing authorities’ committees may see improved communication and understanding as unnecessary, or even that communication should be confined to one way directions to employees, but I am sure that the vast majority of people in the industry recognise the value of improving communication and industrial relations expertise.  (Emphasis added).

The Commissioner’s decision was taken to appeal by some of the employer respondents, the appeal being on grounds not connected with the merits of trade union training as such.  The appeal was dismissed.  (C.No. 5327 of 1983, Print F2761.)

More recently, in another employer’s appeal case (C.No. 4922 of 1987, Business Equipment Industry (Technical Service) Award) the majority decision, referred to the history of trade union training leave applications, previous relevant decisions and the form of the award provision awarded, the subject of the appeal.  The appeal was rejected, the majority stating:

First we are not prepared to overturn the decision that there is a basis for the introduction of trade union training leave in the subject award.  That conclusion was open to the Commissioner or the material before him.

The majority bench went on the remit the matter back to the parties for consideration of their recommendations for the terms of an appropriate award provision.  A list of arbitral decisions in Federal and State industrial tribunals is included in Appendix 4.

Pertinent to this submission is the acceptance by the employer respondents to the Metal Trades Award and the clothing trades’ awards of union industry development/restructure training for their employees which has been endorsed by the Australian Conciliation and Arbitration Commission.

10.  Trade Union Training Serves The Community

This chapter has set out to show what trade union training is, who provides it, what training is provided, who the participants are, where it is conducted, who supports it, what the employers attitudes are towards it and who has subjected it to scrutiny and what they have had to say.

For New South Wales, this chapter demonstrates that:

• the bulk of trade union training is conducted for workplace union representatives and rank and file unionists;

• the training is conducted by TUTA, supplemented by the major unions and, for occupational health and safety, by the Labor Council;

• the greater part of the training covers industrial relation’s knowledge and skills with particular emphasis on communications skills and industrial entitlements;

• those who receive training are from public and private sector employment, workers who are representatives of nearly all the State’s unions and of almost all trades, callings, vocations and occupations;

• training is conducted wherever there are concentrations of unionists or where unionists can readily travel to receive training.  In other words, throughout the main populated areas of the State;

• support for trade union training is provided:

• • directly, by the provision of fiscal and material resources and facilities through the major unions, the Labor Council and TUTA,

• • indirectly, by the provision of employer paid leave for workplace representatives to attend courses by award prescription or ex gratia,

• many employer actively support the concept of trade union training by their acceptance of leave grants to unionists for training and recognition of the value of knowledgeable and skilled workplace union representatives,

• independent authorities who have scrutinised the concept, operation and results of trade union training have all declared its value in providing improved industrial relations.

The conclusion to be drawn is that trade union training as it has been defined provides the community with unionists who are informed and skilled communicators in industrial relations at the workplace which in turn improves workplace industrial relations and which must lead to improved productivity.

11.   What The New South Wales Government Should Be Doing

It follows from the above discussion that it is in the interest of the government in New South Wales to foster trade union and related training, particularly in the light of the industrial relations, economic and community benefits.

There are two major areas where this should take place, namely, occupational health and safety training and more general trade union related training.  The issue of occupational health and safety training is discussed below in the context of the Labor Council’s activities.

Specifically, the Labor Council advocates that the following actions should be supported by the New South Wales Department of Industrial Relations and Employment:

• Policy advice and support for trade union training should be a feature of the Department’s activities.  This is especially so in relation to the Department’s own staff.

• In conjunction with the Public Employment Industrial Relations Authority, the Department should monitor and encourage trade union training initiatives.  This should include insisting on adequate funds for relief staff to ensure that the right to leave is in fact a reality.

• Encouragement should be given to specific training developments in both the private and public sectors in the award restructuring and industry development/fields.  This may involve the provision of funds to employers/unions.

• Consideration should be given to specific funding and other support for joint union/employer courses where both the union and the employer support such a development.  This may involve encouraging TAFE or a university or another appropriate institution to develop specific initiatives.

In addition, the Labor Council submits that paid education leave provisions should be incorporated in the Industrial Arbitration Act to cover all employees under State Awards.Why the Labor Council Occupational Health and Safety Training Activities Should Be Supported by the New South Wales Government

13. Why the Labor Council Occupational Health and Safety Training Activities Should Be Supported by the New South Wales Government

a)    Background

The western suburbs of Sydney contains a significant proportion of this State’s industrial workforce, many of whom are engaged in the high risk manufacturing and construction industries.  In 1986, funding was made available to the Labor Council of New South Wales enabling the establishment of an Occupational Health and Safety Training Unit at Parramatta.  This complemented the existing city training unit which was established with Federal funding to provide general occupational health and safety training for union members.

Set up to facilitate the training needs of employee members on joint management/employee occupational health and safety workplace committees, the Parramatta Unit commenced cooperation in October 1986.  This training for committee members, who have a statutory right to, and must, attend a four day accredited training course of their choice (established under the Committees in Workplaces Regulation of the NSW Occupational Health and Safety Act), is given without direct charge to employers.  Commercial training rates for committee members currently runs in excess of $300/head.

In the eighteen months since the Unit commenced training, almost forty accredited four-day basic courses have been conducted.  In 1987, over 800 committee members completed the accredited training course.  Each participant at the courses is asked to fill in an evaluation form for the course.

These evaluations show that the courses have been well-received and that the participants find them practical and relevant to their role as members of occupational health and safety workplace committees.  A number of the accredited courses have been specialised for the building industry which, by its nature, experiences a number of particular occupational health and safety hazards.

Additionally, eight courses per year have been held in major country centres by staff from the Unit.  The response from these under-resourced regions have been excellent, showing that a great need for these courses is perceived in the more isolated areas of New South Wales.

The Unit also conducts a number of one day hazard seminars.  Each of these concentrates on a particular hazard, outlining its dangers, and the ways and means of overcoming them.

b)    Scope of Present Activities

(i)     Four Day Accredited Basic Training

The Training Unit offers a four day, accredited basic course on Occupational health and Safety.  The course has received tripartite accreditation from the Training Committee of the Occupational Health, Safety and Rehabilitation Council of New South Wales and, as such, is subject to random review or inspection by officers of the Department of Industrial Relations and Employment.

The major thrust of this course is to equip members with the information necessary to facilitate their effective participation on workplace occupational health and safety committees.  The basic training programme covers five main areas:

• varied approaches to occupational health and safety;

• legislation, including the Occupational Health and Safety Act, associated legislation and the rights and functions of committee members;

• identification, control and prevention of hazards;

• joint consultations, effective committee meetings and operations; and

• sources of information for workplace safety committees.

(ii)    Specific Hazard Seminars

The Training Unit also conducts one day hazard seminars.  These seminars target specific hazards and focus on:

• the nature of the hazard and the terminology associated with it;

• legislation, regulations and standards re the hazard; and

• workplace safety committee strategies for control of the hazard.

Specialised guest speakers are invited to lecture at these seminars.  Seminar topics include, for example, noise, chemicals, manual handling, cranes, stress, heat and cold, asbestos, electromagnetic radiation, screen based equipment and food handling.

(iii)  Other Services

In addition to the training services outlined above, the Training Unit also provides a number of services which are available to affiliates and interested bodies.  These include:

• curriculum development of course material for use on a range of accredited occupational health and safety training programmes.  This material includes specific role play exercises and information handouts.  Much of this material has been used by other recognised training authorities, such as TUTA;

• contributing to occupational health and safety sessions at seminars and courses arranged by other organisations, such as the DIRE, TAFE and TUTA;

• the provision of information for union members in the form of basic readable and instructive manuals, pamphlets and promotional material – aimed at better facilitating a consultative approach to workplace safety committees;

• a monitoring service on health and safety so as to keep abreast of new developments;

• developing information files relevant to Australian workplaces on major hazards arising as technology changes; and

• representation in tripartite forums including ‘standards’ committees, committees of the Occupational Health, Safety and Rehabilitation Council, and liaising with government authorities on health and safety matters.

c)    Planned Developments

The Labor Council is aware that issues related to occupational health and safety are not static.  As the workplace changes, so too do the training needs of members of workplace committees.  Accordingly, funding of the Labor Council’s initiatives towards occupational health and safety training, as practised in this special Unit, contributes directly to the achievement of objectives generally agreed as essential for the present and to cater for the changing needs of the future.

Future objectives and activities for the Unit will include:

• specific courses for groups who have specific occupational health and safety problems, e.g., migrants, women and high risk industries;

• commencement of refresher courses for members of workplace committees who have attended a basic accredited course.  Such courses would cover legislative changes, new hazard information and a review of committee consultative procedures;

• in addition to the above, the Unit will assist TUTA in conducting advanced occupational health and safety training courses;

• in conjunction with TUTA, conduct occupational health and safety courses at major centres to answer the increasing needs in remote areas;

• a continuance of the one day hazard seminars, updating the range offered to include newly-recognised hazards;

• assisting TAFE to liaise with industry and unions to ensure that TAFE’s health and safety courses are relevant to actual needs;

• consolidation of the information held at the Unit on specific occupational health and safety hazards so as to remain an effective information resource for committee members; and

• publication of a fortnightly newsletter to be circulated to committee members informing them of the Unit’s activities and updating them on hazard information.

d)    Reasons for Continued New South Wales Government Assistance

It follows from the above that there is a strong case for New South Wales government assistance to the Occupational Health and Safety Training Unit.

After all, employers are compelled in certain circumstances (i.e. with more than twenty employees) to set up occupational health and safety committees and to ensure that employee members of those committees are properly trained.  These requirements, particularly in the light of the Williams report on Occupational Health and Safety, are practical, fair and necessary.

Therefore, the Labor Council’s activities here are tightly tied to the New South Wales government’s own initiatives and policies.

It is also appropriate to regard activities in this field as essentially bipartisan.  It is in everyone’s interest – governments, employers and workers – that occupational health and safety committees work effectively, that committee members are competent to deal with important issues, that the number of workplace accidents and injuries are reduced, that productivity at the workplace increases due to effective, fair and properly understood and administered occupational health and safety practices.

What is being done and achieved in this area is of vital importance to the New South Wales economy, the New South Wales community and ipso facto the New South Wales government.

For a relatively small allocation of public funds the Occupational Health and Safety Training Unit, the Labor Council performs an exceptional job and contributes an economic benefit of potentially substantial dimensions.

Perhaps it is also worth mentioning that the Labor Council understands the desire of the various peak employer bodies in New South Wales to receive funding for occupational health and safety training activities.  Whereas this is a matter for the New South Wales government and would presumably require such employer bodies to justify any proposals of this kind it is noted that, at the Commonwealth level, funding assistance is provided in equal proportions to employer bodies and the ACTU for occupational health and safety training.

1.     Introduction

The Labor Council of New South Wales has played a major role in tripartite negotiations and agreements on industry development matters within New South Wales.  For example, the Council played a prominent role in the development of the Australia Reconstructed which was well received nationally.  It is a progressive and important strategic document for the future well being of the Australian economy.

Within New South Wales, the Labor Council and its affiliates have worked in a co-operative manner with government and employer organisations in an effort to improve the relative position of the New South Wales economy in the manufacturing sector.

Clearly established initiatives aimed at improved industrial relations, increased worker involvement and an increasing acceptance by the workforce of the introduction of new technologies has been actively supported by the Labor Council and its affiliates.

The significant attitudinal change now being achieved, in a co-operative manner within New South Wales, is clearly in jeopardy due to the state Liberal government’s ideological push to reduce “the influence of unions” and provide both government and employers with increased penal provisions, massively changing the balance of power between the industrial partners.  In the Labor Council’s view, the government’s industrial relations strategy, as foreshadowed since the 1988 election, is incompatible with an economy that is attempting to increase investment, improve the introduction of new technologies, reduce unemployment and create a manufacturing base of significance within this State.

Unions can be part of the solution to such problems.  However, a hostile and aggressive state government may force the union movement to concentrate on its members’ basic rights and conditions.  This will divert scarce union resources away from industrial development and employment creating initiatives to that of a defensive mode.

The government’s strategy is the greatest single threat to improved industrial relations, employment growth and industry development that this State has faced for many years.

2.    Australia’s Economic Problems

The Australian economy has suffered for many years by its over dependence on primary commodities.  In recent years, this over-reliance has been the source of chronic balance of payments problems, higher levels of inflation and cuts to the industrial and social wage.  The recent balance of payments crisis led to slower economic growth.  However, it should be noted that low income earners, the unemployed and those dependent on Social Security benefits have sheltered to some extent and positively assisted by measures such as supplementary payments, flat National Wage Case increases and the Family Assistance Supplement.

In fact, in these areas, the experience has been good with the balance of payments crisis being addressed and appropriate policy adjustments being made, whilst maintaining strong economic growth and protecting the most vulnerable because of the processes used to make the economic adjustments – consultative, an integrated package (the Accord hallmarks).

The Labor Council notes that our economy remains overly dependent on rural and mineral exports and the boom and bust commodity prices cycle.  While almost 75% of world trade is in manufactures and services, only 32% of Australia’s real export income was generated by manufactures and services in 1985/86.  It should be the aim of governments, industry and unions to increase the share of manufactures and services in our total export income so that members’ living standards, and that of all workers are less subject to the boom and bust commodity price cycle and falling terms of trade.  This is particularly important for exports of engineering products which account for more than 30% of world export income but only around 6% of Australia’s export income.

In May 1986, Treasurer Keating delivered his ‘Banana Republic’ warning.  In June 1986, the Prime Minister delivered his economic statement, outlining the dimensions of the crisis we faced and the need for a reduction in living standards.

The Labor Council notes the magnitude of the crisis that developed during the two year period between July 1984 and July 1986.  During that two year period:

• The prices we paid for imports increased by nearly 20% more than the prices we received for our exports;

• Australian commodity prices fell 28.5% against other currencies (trade weighted index);

• The value of the Australian dollar fell 36%;

• Our current account deficit went from $7.2 billion (1983/84) to $14.7 billion (1985/86);

• Australia’s foreign debt (nett) went from $34.5 billion to $73.9 billion (June 84 – June 86);

• Our inflation rate measured by the consumer price index went from 4% (1984 calendar year) to 9% (1986 calendar year).

In simple terms our terms of trade, commodity prices and the value of the Australia dollar had fallen dramatically, and our foreign debt, balance of payments deficit, and inflation were rising rapidly.  All of those trends indicate and expose the dimension of the crisis that confronted us.

The real issue for the union movement was how to respond to the 1986 crisis in the short-term, while at the same time implementing longer term strategies to moderate the boom and bust commodity cycle and to continue to change the direction of industry development in this country.  The union movement response of which, in New South Wales, the Labor Council has played an important role will be dealt with in section 5 of this chapter.

3.    New South Wales Manufacturing Performance

Given the parlous position outlined in the previous section, it is even more disconcerting to find that New South Wales manufacturing performance in relative terms to other States is declining.  This requires urgent attention by the State government to ensure that our manufacturing base is given an environment in which it can grow.  Once again, draconian industrial legislation designed to weaken unions or exclude union officials from providing advice to members will seriously hinder this State’s urgent need for industry restructuring.  The Labor Council draws to the attention of the author of the Green Paper the significant attitudinal change now being experienced among union members on both economic and industrial matters.  Such changes are being actively advocated by union officials to the membership.  For example, the Metal Trades Federation of Unions (MTFU) with the co-operation of the Metal Trades Industry Association is conducting national training schools on industry restructuring for its shop stewards.  Initiatives such as these will be placed in jeopardy if the state government actively supports a confrontationist industrial relations policy in New South Wales.

The following graphs clearly demonstrate the need to revitalise the New South Wales manufacturing base.  The Labor Council draws comparison to the Victorian experience which is one of slight growth compared to New South Wales decline.

As the table suggests:-

• New South Wales’ share of total manufacturing value added has fallen from 44% in 1959-60 to 36.4% in 1986-87.  Over the same period Victoria has increased its share from 33% to 34.3%.

• New South Wales’ share of total employment has fallen from more than 40% in the 1950’s and 1960’s to 35.3% by 1986-87.  Over the same period Victoria’s share has remained virtually unchanged.

Unfortunately, the strong economic growth in the Australian economy since 1983 has not been accompanied by the kind of revival in New South Wales manufacturing that would reverse the relative decline in this State’s position as the centre of Australian manufacturing industry.  On the contrary, Victoria has continued to out-perform New South Wales in almost all of the key indicators of manufacturing performance as shown in the following tables.

In terms of the all important indicator of new capital expenditure in manufacturing (in current prices), the table clearly shows a much stronger revival in manufacturing investment in Victoria, compared to New South Wales, over the past five years.  But the story does not end here.  Investment is critical in driving the growth of productivity (value added per employee) and improving the competitive performance in manufacturing industry.  Again, despite a better employment performance in recent times, the extent to which New South Wales continues to lag behind Victoria is a major concern.

Manufacturing Industry Performance Over the Past 3 Years:
NSW vs Victoria 1983-84 to 1986-87: (3 years totals)

	NSW	Victoria
Manufacturing employment	4.2%	3.6%
Real value added per employee in manufacturing (1984-85 prices)	4.4%	8.1%
Real value added in manufacturing (1984-85 prices)	8.7%	11.9%
Real turnover in manufacturing (1984-95 prices)	7.7%	8.6%
Real new capital expenditure in manufacturing (1984-85 prices)	42.0%	92.0%

Source: ABS 8201, 5646, 6412, 6248

What Can Be Done To Reverse The Decline In NSW Manufacturing?

The Labor Council believes that, together with the union movement, New South Wales manufacturing industry must address, in association with government, five key industry policy issues.

The five key industry policy issues which need to be addressed include:

1. How best to significantly increase the share and growth of productivity (value added per employee) in New South Wales manufacturing.

2. How to significantly increase the growth rate of investment New South Wales manufacturing.

3. How to significantly increase the growth of productivity (value added per employee) in New South Wales manufacturing.

4. How best to develop and implement sectoral industry development strategies in New South Wales manufacturing.

5. How best to develop and implement regional industry development strategies in New South Wales manufacturing.

Unfortunately, this State’s declining performance in manufacturing industry is also reflected in exports.  Incidentally, there are few problems of accuracy with ABS statistics for manufactures exports by State, because they refer to the State from which the goods were shipped.  Over time, this should demonstrate the growth of manufactures exports by State.  The table below of manufactures exports shows New South Wales has had the lowest growth of manufactures exports of any State.  The question needs to be asked: “What should be done to lift the exports of manufactures from New South Wales?”

Average Annual Growth of Manufactures
Exports 1981-82 to 1986-87: Current prices

WA	27.9%
SA	15.6%
VIC	15.3%
QLD	15.1%
NSW	9.2%

Note: Unpublished ABS Statistics.  Manufactures exports are defined here as AECC 5, 6, 6, and 8, excluding gold, aluminum (AECC68) and classified commodities (AECC9).

As emphasised previously, New South Wales has been lagging behind Victoria in terms of growth of manufacturing productivity.  To a significant extent, this reflects slower growth in output and investment in New South Wales manufacturing compared to Victoria.  While the impact of demand is usually seen as the principal factor influencing investment, the industrial relations environment is also a significant factor in terms of lifting productivity growth.

The Labor Council believes that the structural inadequacies of the New South Wales economy must be addressed in a progressive and strategic manner, with government assistance where required, in a cost effective manner.  To simply believe, as the New South Wales government seems to, that “hard-line” industrial approaches will improve the economy is naïve and dangerous.

4.    The Vicious Circle

The macro-economic figures provided in this submission, if not addressed in a proper manner will continue to lead to a vicious circle of low growth within the economy.  The economic uncertainty leads to limited investment and in many cases limited opportunity for investment.

New technology is therefore not introduced at an appropriate rate and is slowly diffused throughout the Australian economy.  This in turn hinders growth and technical efficiency and limits employment opportunities.

The lack of investment in new technology also limits skills development and the need for industrial relations reform.  The Labor Council is of the view that the introduction of new technologies have been catalysts to the acceptance by the union movement of the need for industrial relations reform.

Low growth also limits strategic planning for the necessary change to bring about a modern manufacturing economy.  Change is therefore hindered at the national, industry, enterprise, business, government and union levels.

This slow and uneven introduction of new technology creates skills gaps in the economy with feed backs to low growth and the vicious circle continues.

5.     Tripartite Commitment to National and State Economic Development

The Labor Council and its affiliates have been committed to tripartite consultation with the view to ensuring increased employment through industry development, by playing an active role with the ACTU and in its membership of the State Development Council and other bodies within New South Wales.  The Labor Council expresses its concern that the number of representatives invited in April 1988 on the State Development Council were initially slashed.  Subsequently, the New South Wales Deputy Premier decided to exclude the Secretary of the Labor Council.  The reduction in union involvement seems to be based on petty prejudice rather than logical reasoning.  Continued Labor Council involvement in such councils cannot continue on that basis.

The most important strategic document designed to increase national economic development is the Prices and Income Accord.

This strategy document was designed to combat inflation and unemployment simultaneously.  Commitments by the government and unions were given on income planning on new investment.  Commitments were also given on industry and labour market development with a major emphasis on a consensus approach to decision making.  A national economic decision making framework was created through the Economic Planning Advisory Council (EPAC), the Advisory Council on Prices and Incomes (ACPI), the Trade Development Secretariat (TDC), the Australian Manufacturing Council (AMC) and industry councils.  The Accord processes have gone through many difficulties, but those processes have sufficiently flexible to accommodate wage/tax trade-offs and productivity bargaining through the second tier productivity and efficiency principle.

The real point, the substantive point to be made is that Australia has coped with a crisis and made the necessary adjustment on the weaker sections of society as a direct result of the policy approach adopted in a constructive consultative way with the involvement of key groups including the union movement – allowing the adjustment to occur more quickly than otherwise possible, on a sustainable basis and without sacrificing employment or the lower paid.  Such a constructive, positive and successful response to the balance of payments crisis involved a consultative approach which facilitated the building of necessary social give and take, and shared commitment to the adjustment process.  This would not have been possible without the consultative, integrated policy approach inherent in the Accord strategy.

Micro Strategy

The Labor Council draws to the attention of this inquiry the significant improvements in industrial relations at the macro level in manufacturing industry in New South Wales in recent years.

During the experience of the two-tier wages system in the metals engineering industry in 1987-88, New South Wales clearly outperformed Victoria.  Unlike other industries which relied primarily on changes to awards, the metal unions combined award changes with some two thousand restructuring agreements at the plant level.  The results as analysed by the AMWU computer system of the first one thousand three hundred and thirty four agreements indicate:

• 51% of plant level agreements were in New South Wales compared to 32% in Victoria.

• 20.4% of New South Wales agreements included provisions for specific training plans and procedures compared to 11.3% of Victorian agreements.

• 34% of New South Wales agreements included provisions for ongoing consultative procedures compared to 11.2% of Victorian agreements.

• 17.4% of New South Wales agreements included provisions that addressed the issues of import replacement, export expansion or commitment to research and development compared to 5.3% of Victorian agreements.

Despite the stronger performance of New South Wales Metal Industry Award second tier agreements, Victoria has, in recent years, achieved higher levels of manufacturing industry performance, including productivity.  This shows the need to couple the improvements initiated in productivity initiated by the metal unions with a high growth, high investment strategy.

It might be noted here that research, including industry and workplace studies, on such trends and developments would be valuable for assessing the strengths and weaknesses of recent experiences.  That should partly be the job of the New South Wales Department of Industrial Relations and Employment, as is mentioned in the chapter The Role of the Department, Including Public Sector Employment Matters.

With award restructuring on the agenda as the major issue for the next three years, New South Wales can once again take the lead and improve productivity.  However, if there is a confrontational industrial relations environment, if New South Wales attempts to become a laboratory for a ‘New Right’ industrial relations agenda, there will be massive resistance to any change.  Productivity will become a non-issue as unions and the workforce revert to an approach that meets confrontation with confrontation.  The real issue is how to ensure a stable, predictable industrial relations environment that supports rather than undermines the agenda for award restructuring, while promoting higher rates of economic growth and investment.  The Labor Council supports the MTFU in its negotiations with the MTIA to bring further productivity and efficiency gains to the metal industry through an award restructuring exercise.

The Labor Council also supports the MTFU strategy for improved productivity, quality and competitiveness, increased value added manufacturing, higher research and development and increased exports.  The Labor Council is of the view that the New South Wales economy badly needs technological change and improved efficiency.  This can be achieved by the introduction on a consultative basis of: continuous process technologies, automation, mechanisation, micro electronic application (products and processes), quality assurance (total quality control), production scheduling (JIT) and the abolition of Taylorism.

It is necessary for companies to foster greater adaptability and better planned redeployment of resources, people, products and processes.  Improved company organisation will be achieved through changes to work and management practices, improved consultation and participative procedures, improved career and skills opportunities through new occupations and classifications, the broad banding of skills and a development of a career path for workers.

This can only be achieved through agreement to modernise industrial awards through award restructuring.

Successful award restructuring will rely on improved industrial relations.  The leadership of the union movement has demonstrated that they have both the commitment and the ability to convince workers that industrial confrontation should be replaced by consultative and participative procedures leading to major structural and attitudinal change.

It is important to note that, internationally, experts in the field of business administration have analysed and commented on the limits of efficiency gains through a narrow focus on making workers work harder, longer, or for less remuneration.  This inquiry’s attention is drawn to a recent article by Professor Wickham Skinner (James E. Robertson Professor of Business Administration at the Harvard Business School).

In the article, published in the Harvard Business Review and titled ‘The Productivity Paradox’, Professor Skinner refers to a typical American company which operates a large manufacturing plant which has had a major productivity improvement programme underway for the past three years.  The key objective was to boost productivity so as to remove a 30% competitive cost disadvantage.  As the article points out, the programme included:

• establishing departmental productivity committees;

• appointing a corporate productivity manager;

• raising the number of industrial engineering professionals by 50%;

• carrying out operation-by-operation analysis to improve efficiency levels, avoid waste and simplify jobs;

• retraining employees to work ‘smarter not harder’;

• streamlining work floor and material movement;

• replacing out of date equipment;

• re-tooling operations to cut operators time;

• tightening standards;

• installing a computerised production control system;

• training supervisors in work simplification;

• emphasising good housekeeping and cleanliness; and

• installing a computer-based, measured day work plan, which allows for daily performance reports on every operation, worker and department.

Despite all this, the productivity programme failed.  As one of the company’s executives summarised it:

It’s been great finally getting management support and the resources needed to get this plant cleaned up and efficient.  But it is extremely discouraging to have worked so hard, and after three years, to be in worse competitive shape than when we started.  I do not know how long we can keep trying harder when it does not seem to be getting us anywhere.  (ibid., page 55).

As Skinner notes about this company and twenty-five others he visited:

Never have I seen so much energetic attention to productivity starting from the top and ricocheting all the way through organisations.  This is American hustle and determination at its best.  Productivity committees, productivity czars, productivity seminars and productivity campaigns abound.

But the harder these companies work to improve productivity, the less they sharpen the competitive edge that should be improved by better productivity.  Elusive gains and vanishing market share, point not to a lack of effort but to a central flaw in how that effort is conceived.  The very way managers define productivity improvement and the tools they use to achieve it push their goal further out of reach.

Resolutely chipping away at waste and inefficiency – the heart of most productivity programmes – is not enough to restore competitive health.  Indeed, a focus on simple cost reductions (that is, on raising output while keeping labor constant, or better, reducing it) is proving harmful.

Let me repeat:  not only is the productivity approach to manufacturing management not enough (companies cannot cut costs deeply enough to restore competitive vitality): it actually hurts as much as it helps.  It is an instinctive response that absorbs managers’ minds and diverts them from more effective manufacturing approaches. (ibid., page 56)

What Skinner is on about is something that in the Labor Council’s view is critically important when we start to think about issues like those called for consideration in the new August 1988 wages system: multi-skilling, training, work practices and new management techniques.  These are matters that need to be solved jointly to improve the competitiveness of the metal engineering industry.

Simply put, a productivity strategy that looks at cutting operational costs by being preoccupied with direct labour efficiency and focusing excessively on the efficiency of factory workers won’t work.

As Skinner notes:

By trying to squeeze out better efficiency from improved attitudes and tighter discipline on a person-by-person and department-by-department basis, the approach detracts attention from the structure of the production system itself.  (ibid., p. 56).

Skinner notes, and the Labor Council supports this view, that:

• around 40% of any manufacturing based competitive advantage comes from long term changes in manufacturing structure which involves decisions about the number, size, location and capacity of facilities, and basic approaches in material and workplace management;

• another 40% comes from major changes in equipment and process technology; and

• the final 20% – no more – stems from the narrower ‘operational cost reduction approach to productivity’.

If we go into a wages system and only focus on this 20%, the objective of making the metal and engineering industry more competitive will not be achieved.  This approach would, as Skinner notes, ignore –

…other ways to compete, that use manufacturing as a strategic resource.  Quality, reliable delivery, short lead time, customer service, paid product introduction, flexible capacity and efficient capital deployment – these, not cost reduction, are the primary operational source or advantage in today’s competitive environment.  (ibid., p. 56).

So the Labor Council suggests that, when we talk about the second tier experience or award restructuring in the wages system as a vehicle for helping to build career structures into industry and as a lever to launch changed strategies at the company level, there should not be a preoccupation with thinking about multi-skilling as a vehicle to achieve a 10% de-manning exercise.  If we get bogged down simply in short term cost cutting exercises we will as Skinner and others argue: “Short-circuit the development of an aggressive manufacturing strategy.”

What we are finding, for example, with the companies which are currently negotiating or implementing the heavy engineering plan is one of two approaches – either an old fashioned, narrowly based cost cutting productivity strategy on the one hand, or alternatively, what Skinner calls:

A manufacturing strategy which allows the structure to be managed, not just the short-term, operational details of cost, quality and deliver.  And it spells out an internally consistent set of structural decisions designed to forge manufacturing into a strategic weapon.  These structural decision include:

• • What to make and what to buy

• • The capacity levels to be provided

• • The number and sizes of plants

• • The location of plants

• • Choices of equipment and process technology

• • The production and inventory control systems

• • The quality control system

• • The cost and other information systems

• • Workforce management policies

• • Organisational structure.”  (ibid., page 58).

It is the Labor Council’s view and argument that productivity improvements – and by that is meant real, durable, competitive improvements – will only come from this second type of strategy.  Only by achieving a joint management-union commitment to this approach can the metals and engineering industry make a significant contribution to overcoming the problems this country faces.

The Labor Council therefore believes that the analysis prepared by Professor Skinner clearly establishes the need for long term strategic planning complimented by structural and attitudinal change supported by a sophisticated industrial relations/consultation procedure.

6.     The Role of Industrial Relations

Adjustment within the manufacturing sector leading to major award restructuring proposals can only be achieved through the comprehensive involvement of the union movement – from the senior union official level right through to the union members at the workplace level.

This must be supplemented by a well designed and resourced planning and consultative process operating at the national, local and enterprise levels.

The high level of union membership in Australia demonstrates that the workforce has a strong commitment to union organisation and their leaders.

The workforce trusts the unions and believes that they deliver equity and balance in the costs and benefits of the workplace change process.

The NSW state government strategy to radically change the balance of power to that of a clearly defined employer dominance is not in the best interest of industry development within New South Wales.  The underlying theory behind the government’s strategy must be that weak unions are compliant unions and will provide flexibility and support for the introduction of new technologies.  The Labor Council rejects such analysis and believes that the introduction of new technologies and the commitment from workers to change work practices and co-operation can only come from within an organised structure, specifically the union movement.  It is no secret that in the recent second tier wage experience it has been the union movement which has set the pace in putting forward sensible and workable reforms to improve productivity and workplace organisation.

7.      The Key Role of Trade Unions

The union movement involvement during the second tier restructuring efficiency negotiations within the metal industry was progressive, and designed to bring about changes which would lead to the easier implementation of new technologies and improved work practices.  This clearly demonstrates the need for union involvement and major award restructuring projects.  The union movement can ensure that change will come in a balanced, equitable and progressive manner and, at the same time, win the support of the workforce.

Without the support of the union movement, the commitment from the workforce to radical industrial and occupational changes would be much more difficult to achieve.

Unions must therefore be involved in the process of restructuring.  Governments which are hostile to unions put the whole process at risk.

Industry and unions are committed to change through the national economic development process, they will therefore oppose any hostile government  and those ideologies which put at risk a planned and progressive move towards industry restructuring with the resulting benefits for the Australian economy as a whole.

8.     Industry Development and the Public Sector

There are a number of reasons for public sector unions to have an  interest in industry-policy matters.

First, any revitalisation of Australian industry means an increase in wealth creation and distribution.  It is reasonable to suppose that at least part of this revitalisation could occur in State-owned industrial complexes.  So, public sector unions have an interest in allocative, productive and distributive elements of industry policy.

Second, in common with other progressive elements of society, public sector unions have a general interest in economic matters such as unemployment.

Third, the drive to establish an integrated, co-ordinated, flexible and efficient industrial sector provides an unprecedented opportunity for an expansion of public sector involvement.  Corporate leaders have recognised the need for more government and union involvement in decision-making in, for example, the Industry Councils at the national level; at another level, arguments are being advanced to obtain the profits generated by many public sector enterprises.

As earlier mentioned, public sector unions have an interest in allocative, productive and distributive elements of industry policy.  The Accord tied social wage questions into an overall economic strategy, and was concerned with the distribution of the advantages which was believed would result from the implementation of the Accord.  It also contained a section on Industrial Development Policy.  This stressed the need for an interventionist strategy, including a planning mechanism “… to develop a viable manufacturing sector which will generate greater links with other sectors of industry”.  It was recognised that the public sector would have a major role to play.  A number of industry councils were established, confirming the emphasis placed on tripartism.

However, some public sector unions have expressed concerns as to their lack of a (direct) role on these industry councils touching on public sector matters.  Concerns have also been expressed that, to date, moves towards serious implementation of industrial policy principles in New South Wales have been virtually non-existent.

The emphasis in recent times has been on industry development within the manufacturing industry.  Whilst not detracting from the obvious needs in this area, public sector unions contend that this is only one side of the coin.  The role of the public sector must be recognised and provision made for its valid participation in the process.

9.    Conclusion

The Labor Council believes, that for the New South Wales economy to prosper, the current inquiry into industrial relations in this State must embrace a consensus approach to industrial relations questions.  To move to increased penal provisions against unions and their members will inevitably lead to increased industrial disputation which will be counter productive to the New South Wales economy and the citizens of this State.

In the recent period, a confrontationist approach by governments would have led to defensive positions, resistance to change and, necessarily, greater reliance on blunt economic policy measures which grind the economy to a halt at the cost of employment.  Union involvement in policy making has brought responsibility.  Reversion to the “traditional” outdated confrontationist approaches will promote reversion to “traditional” responses – defensive responses directed to protecting the immediate interests of members.

There remains a substantial adjustments task, notwithstanding considerable progress to date; but the remaining task will best be achieved through the continuation and development of the consultative process – involving a centralised wage system making its contribution.  Reversion to the old ways of the past will make it difficult to achieve that further progress.

The Labor Council states that the broad social and welfare interests will suffer if a manufacturing sector is not developed in New South Wales.  The economy will be unable to provide initiatives on welfare issues, Aboriginal issues, and other matters of equity if the economy continues to rely on minerals and agriculture for export earnings.  In conclusion, the Labor Council strongly calls for a co-operative approach to industrial relations in order to continue to develop the improved attitudinal change advocated by union officials and increasingly being accepted by the union membership.

Select Bibliography

What appears here in no way pretends to be a comprehensive survey concerning the industrial relations literature discussing the issues canvassed in this submission.  Rather, what follows are references to articles, books and publications referred to in various places throughout this submission.

ACTU     Future Strategies For the Trade Union Movement, Melbourne, 1987.

ACTU     Women Workers: The Effect of the Two Tiered System, Melbourne, 1988.

Anti-Discrimination Board, Trade Unions: Membership and Non-Membership, ADB, Sydney, 1983.

Australian Reconstructed, Australian Government Publishing Service, Canberra, 1987.

Australian Bulletin of Labour, Institute Studies, Institute of Labour Studies, Flinders University, various issues 1984-87.

Beggs, John J. and Chapman, Bruce J., ‘Australian Strike Activity in an International Context: 1964-1985’, Journal of Industrial Relations, Vol. 29, No. 2, June 1987, pp. 137-149.

Brooks, B., Contract of Employment: Principles of Australian Employment Law (3rd ed.), CCH Australia, 1976.

Chavez, C.E. and Rustin B., Right to Work Laws – A Trap For America’s Minorities , A. Phillip Randolph Institute/United Farm Workers, AFL-CIO, 1967.

Department of Industrial Relations and Employment (NSW), Annual Report, Government Printer, Sydney (various issues 1984-87).

Donn, Clifford ‘Australian Compulsory Arbitration – Some Proposed Modifications’, Journal of Industrial Relations, Vol. 18, No. 4, 1986.

Freeman, Richard B. and Medoff, James L., What Do Unions Do?, Basic Books, New York, 1984.

Frenkel, S. and Pratt, G., ‘Workplace Industrial Relations in the Metal Industry: Some Pointers from Survey Research’, LPS/CIRRUS Working Paper No. 5, August 1988.

Greiner, N.F., ‘Industrial Relations: New Directions for New South Wales’ (A speech issued during the 1988 New South Wales election campaign) mimeo, 9pp.

Hancock, K.J. et.al., Australian Industrial Law and Systems (in three volumes), Australian Government Publishing Service, Canberra, 1985.

Hancock, K.J., ‘Compulsory Arbitration Versus Collective Bargaining: Three Recent Assessments’. Journal of Industrial Relations, Vo. 4, No. 1, 1962 pp. 20-31.

Higgins, H.B., A New Province for Law and Order, Constable and Company, London, 1922.

Hook, Sidney, Paradoxes of Freedom, Prometheus Books, New York, 1987 (first published in 1961).

ILO, Freedom of Association: A Worker’s Manual, ILO, Geneva, Second Edition, 1987.

Issac, J.E., ‘Professor Niland on Collective Bargaining and Compulsory Arbitration in Australia’, Journal of Industrial Relations, Vol. 21, No. 4, December 1987.

Kelty, W.J., ‘Industrial Democracy Within the Concept of the Social Wage’ (Transcript of an address to the Industrial Democracy and Employee Participation Conference, August 17, 1984 – Melbourne) mimeo 11pp.

Labor Council of New South Wales, Policy Booklet, Sydney, (various issues 1984-88).

Labor Council of New South Wales, Submission to the Committee of Inquiry into Australian Law and Systems, Sydney, 1984.

Ludeke, J.T., ‘Commonwealth and State Industrial Powers’, in Thompson, D.C. (editor), Industrial Relations in the 1970s, Law Book Company, Sydney, 1970, pp. 6-13.

McCallum, Ronald C., ‘Civil Liberties and Industrial Relations: Hein v. Jaques Ltd.’, Australian Bulletin of Labour, Vol. 13, No. 4, September 1987.

Mcdonald, T. and Rimmer, M., ‘Award Restructuring and the Second Tier’, Australian Bulletin of Labour Law, June 1988.

Merrifield, L.S., ‘Wage Determination Under Compulsory Arbitration: The Basic Wage in Australia’, George Washington Law Review, Vol. 24, No. 2, December 1955.

Niland, John, Collective Bargaining in the Context of Compulsory Arbitration: An Australian Dilemma, Department of Industrial Relations, University of New South Wales, Kensington, 1976.

Niland, John, ‘Gaining Against the Tide: Australian Unionism in the 1980’s’, Bulletin of Comparative Labour Relations, 1986.

Plowman, David ‘The Hancock Inquiry: Models And Strategies For Change’ Department of Industrial Relations, University of Western Australia, Discussion Paper 3, mimeo, 41 pp.

Robens Committee (Committee on Safety and Health at Work), Report of the Committee on Safety and Health at Work, HMSO, London, 1972.

Skinner, W., ‘The Productivity Paradox’, Harvard Business Review, July-August 1986.

Tawney, R.H., The Radical Tradition, Allen and Unwin, London, 1964.

Walker, K.F., Australian Industrial Relations Systems, Harvard University Press, Cambridge, 1970.

Wedderburn, Lord, ‘Labour Law: From Here to Autonomy?’, 16 ILJ, 1987.

Williams, P., ‘Robe River: How Not to Take on a Union’, Business Review Weekly, 23 January 1987.

Williams, T.G., Report of the Commission of Inquiry into Occupational Health and Safety, NSW Government Printer, Sydney, 1981.

Appendix 1

Report of the Review of Maternity Leave Provisions by the Working Womens’ Charter Committee

Appendix 2

ILO Conventions and Recommendations

Convention No. 87

Convention No. 98

Convention No. 135

Convention No. 140

Convention No. 143

Convention No. 151

Convention No. 155

Appendix 3

(A search of my papers has failed to find what Appendix 3 might have contained, if anything)

Appendix 4

Trade Union Training Leave

A.        Federal Awards

B.        State Awards

C.         Extract From The Hancock Report

D.        Arbitrated Decisions

Appendix 5

Submission by the Labor Council of New South Wales to the Committee of Review Into Australian Law and Systems

Postscript (2014)

As the Labor Council of NSW’s Assistant Secretary, I mainly with Donna McKenna, Legal Officer of the Council, co-ordinated and led the research and writing of this submission, together with my other Labor Council colleagues.  The Hon. Jeff Shaw QC MLC, the Shadow Minister, and the industrial relations academic David Plowman also provided input and overview comments.

I thought the paper important for three reasons.  First, to attempt to persuade the new Greiner Liberal government that the existing industrial relations system in NSW was more flexible and innovative than what existed federally, and that tinkering from within rather than wholescale change was merited.  Second, to provide a justification for the various specialist officers that the Labor Council employed, including the public policy goods and benefits that were being achieved and could be extended in future.  Perhaps too subtlety, I argued that state government grants to the Labor Council was money well spent.  The third reason was as an aide memoire about the organisation and operations that then constituted the Labor Council of NSW.

I did not think at the time that what was writen would be a mere historical snapshot of what we once were but, rather, a dynamic justification for continuing the model.

I was inspired by former Labor Council Secretary John Ducker’s counsel that when the Askin government was elected in 1965, they sacked all the union nominated directors on state government boards and decided to deal “direct” with the unions, by-passing the Labor Council.

Within a year, mugged by reality, that government thought they were in a nightmare situation and invited back certain unionists onto boards and started welcoming the Labor Council’s involvement in settling industrial disputes and co-ordinating whole of industry responses and initiatives.  In the mid-1960s, within a year, Ducker went from sacked Director on the State Dockyard to Director of State Transit (or whatever the state government bus authority was called in those days), he told me.

Soon after Premier Greiner’s election, as many union leaders as possible were either not renewed as appointees or given notice that they would not be reappointed onto government boards. 

Ducker’s counsel was not just about spots on boards for union officials, a relatively unimportant question.

His view was that government is always harder than it looks, and that ultimately it is logical that a conservative administration would seek to have good relations with the unions, and would appreciate the positive impacts that unions can have for productivity and the community more generally.

Perhaps such hopes reflected the postwar consensus on the place of meditative bodies, such as unions, in forging a fairer world and the distinction between “responsible unionism” and more radical dispositions and activity.

In retrospect, with a new government, elected in March 1988, hostile to any funding for programmes carried out by unions, the writing was on the wall for the specialist functions, and the Labor Council should have taken into account the threat of sudden cessation of grants and funding commitments.  The economic downturn (with worse on the way) exacerbated the funding problem for the Labor Council.  Capitation fees significantly reduced.  Union members were lost as companies shut down and, additionally, money was “saved” by some unions revealing they never had as many members, so the per head payment to the Labor Council (under the fees formula) was reduced.

A year into his Premiership, however, Premier Greiner approached me, asked for my permission, and I was appointed to the Board of the State Rail Authority of NSW.  So it seemed like one aspect of Ducker’s scenario/prediction was coming true.

Except in industrial relations regulation and in cutting back funding programmes and specialist activities at the Labor Council.

The government’s mantra was that ‘it is great you guys are doing wonderful work, but the government does not want to pay for it.’

On industrial relations, the relevant Minister, John Fahey appointed Professor John Niland from the University of NSW, to do a review of the NSW industrial relations system and to recommend ‘reforms’ in a Green Paper.  Professor Niland was – and is – an engaging, thoughtful, long-term critic of the Australian conciliation and arbitration system.  Consistent with his thinking and advocacy of American-style (with Australian characteristics and safeguards) collective bargaining, a good deal of that was freighted into his report.

(Green Papers are discussion papers advocating a policy approach; they are meant to stimulate debate, canvass options, with the implication that further refinement of ideas, even a total rethink, is possible.  Green Papers can be issued in the name of a government minister or by a person or persons delegated by the minister for that task.  A more definitive statement, conveying the fruits of further research and the pickings and gleanings from the ensuing debate, is distilled to a White Paper.  That at least, was the classic way such things were done.  More commonly nowadays in Australia, the “white paper” is the proposed legislation, a Bill, presented to the parliament.)

Some of the arguments in the Labor Council document were a rehearsal for the presentation of contrary positions and in contesting the government’s draft industrial and related legislation in the years ahead.

On all that, it is interesting that John Hannaford, the then Attorney General and government minister in the Upper House responsible for trying to shepherd through legislation said in an interview about the period that the government was poorly prepared for the debate due to follow.  The interest groups were well organised.  He meant in large part the Labor Council of NSW and affiliates were better at conveying arguments to the cross benches in the NSW Legislative Council than they were.  Hannaford said:

From my perception they developed a much closer relationship with the crossbenches.  I suspect it is a skill that is developed within the Labor Party of dealing with union negotiations and the art of negotiation.  The skill of compromise underpins the life of an industrial negotiator, something that is not within a lot of the experience of Coalition members… 

I certainly know that the art of debate on the floor was critical on many issues.  In certain areas – critical areas – yes, deals had been done with certain members of the crossbench, but you could work on the basis that if you put up a good argument then there was a chance that you might be able to change the vote…

I think that the enthusiasm of some ministers and the enthusiasm to drive agendas get tempered and therefore you look for what might be a more moderate reform.  So you do not get the extremes of positions that get driven and it means that a government has to look at governing to the mid ground.  If it wants to drive a significant agenda, then it has to be prepared to do a lot more work in conditioning the community and therefore conditioning the crossbenches.¹⁷⁰  

The Labor Council, by deploying union leaders and ordinary citizens from the ranks, to convey, humanise and persuade the crossbench MPs in the NSW Upper House on this or that aspect of legislation, the need to amend or substantively change, was part of the dynamic.  Effectively so, as Donna McKenna, working closely with The Hon. Jeff Shaw QC MLC, was very influential.

Before Professor Niland released the first volume of his Green Paper, in February 1990 he arranged to meet me in Hyde Park to explain over a walk the rationale for his report.  In a brown paper shopping bag, he handed over a pre-copy.  He wanted to be decent in letting me know what was in the bag.

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¹⁷⁰David Clune & David Blunt (interviewers), Transcript of Interview with The Hon. John Hannaford, Oral History Project, NSW Legislative Council, 16 July 2013, pp. 4-5, https://www.parliament.nsw.gov.au/lc/roleandhistory/Documents/Transcript%20-%20John%20Hannaford.PDF