ALP plan to increase Fair Work power to intervene in disputes

The Australian, January 24, 2018

The Fair Work Commission would be given greater powers to intervene in long-running workplace disputes under a proposal being considered by federal Labor to reduce the capacity of employers and unions to exploit the ­nation’s workplace laws

In a proposal slammed by employers last night, opposition workplace relations spokesman Brendan O’Connor said Labor was considering reviving previously abandoned plans to give the commission greater powers to arbitrate intractable disputes between unions and employers.

“The umpire needs a whistle,’’ Mr O’Connor told The Australian. “If the umpire is going to have an effective role, it has got to have leverage that it can apply to bringing certain disputes or negotiations to resolution,

“Labor wants matters to be determined by the parties and Labor expects agreements to be struck by the parties.

“Failing that, there’s got to be a mechanism of last resort. There are too many instances where there is no mechanism if one party acts disingenuously or doesn’t act in good faith. That’s the problem we have.”

ACTU secretary Sally McManus last night welcomed the proposal, linking the previous winding back of the commission’s powers to wage theft and the capacity of employers to lock out workers. “It should be quick and easy for working people to access justice,’’ she said. “A strong, independent umpire is necessary to balance the power of employers.”

But Mr O’Connor said the proposal was a “two-way street” seeking to address employer attempts to game the system, while providing a legal option for employers faced with unions pursuing unreasonable wage demands.

“Our industrial relations laws need to be framed in such a way as to motivate good-faith bargaining between the parties but the evidence suggests otherwise,’’ he said. “Reasons for this include a growing inclination of employers to game current laws by, for example, terminating agreements, engaging in long-term lockouts or getting a small group of workers to vote for agreements that are then applied to a larger group of workers interstate.

“It could be where unions are on strike and putting on crippling bans for months because they want to hold out for significant wage outcomes or conditions.’’

Mr O’Connor said the commission “may not have sufficient authority to assist the parties to reach settlements’’.

“We need to examine whether good-faith bargaining is taking place and if it fails to take place what role the Fair Work Commission can play to compel parties to strike an agreement,’’ he said.

“I would think the commission would still play predominantly a conciliatory role. But by providing the commission with more authority as a last resort, it’s more likely its conciliation role will be far more effective.”

Australian Industry Group chief executive Innes Willox said last night that changes were needed to the Fair Work Act to create a more productive workplace relations system, not to increase union power.

“The unions want the Fair Work Act changed to give them even more power over employers in the bargaining process,’’ Mr Willox said.

“Union powers were increased in more than 100 areas when the Fair Work Act was introduced by the last Labor government. Giving the unions even more power serves nobody’s interests at a time when the economy is gathering some momentum.”

In 2013, Bill Shorten, then workplace relations minister in the Gillard government, delayed proposed amendments to the Fair Work Act allowing for arbitration of intractable disputes. The Coalition won the election later that year.

Access to arbitration by the commission generally requires the consent of employers and unions but exceptions include where there is capacity for significant economic harm or a threat to public safety.

University of Adelaide law professor Andrew Stewart said Labor’s proposal was sensible but the critical issue was the detail of any proposed amendments. “Labor is building a substantial but still incremental reform agenda for the next election,’’ he said.

Mr O’Connor said Labor had not yet considered what would be the trigger for intervention by the commission in intractable disputes.