This could be the start of a terrible ACTU friendship for Christian Porter

Christian Porter didn’t need to consult the unions about JobKeeper. Picture: AAP
Christian Porter didn’t need to consult the unions about JobKeeper. Picture: AAP
The Australian,

Since the COVID-19 pandemic hit, the liaison between Christian Porter and Sally McManus has been a personal source of sinking dismay. Our Industrial Relations Minister, thinking himself the spider, is but a fly, needlessly caught in the web.

This new relationship between Porter and the ACTU secretary is a political frolic of the government’s making. It is a delightful change for them, this is true, to revel in the sulking irrelevance of a marginalised Labor. But the cost of these Canberra games will be felt in the real world. In the real world, business owners and their employees will be the ones who pay the price.

Right now, the hard evidence of this is piling up on the steps of the Fair Work Commission.

This is not a personal slight against union officials, because in every bad system there are good people doing good work where they can. It is not a slight against unions either because working people must have access to advice and representation.

Nevertheless, take it from an ex-union official who also has decades of experience representing business: nothing good ever comes out of forging a relationship with a union if you are an employer trying to represent the interests of a business and their workforce, or a minister designing a government program.

Not only does nothing good come from a union relationship, there is mostly no reason to have one. Bosses shouldn’t talk to unions, they should talk to their workers instead. Workers can talk to their unions as they please, and use their support and advice when talking with the boss.

Unfortunately, for some in power, the prospect of direct engagement with a union person on the industrial relations battlefield proves an alluring prospect. They believe (delusion) that a reasonable negotiating style, combined with a logical position based on fact and data, will prevail. This, combined with their winning personality and charm (delusion and ego), will see them achieve good outcomes.

So against the best advice, like moths they flutter towards an unyielding flame, only to have their wings burned, time and time again. Union officials use a combination of punishment and reward across the longer term to extract what they need to.

In this instance, even though there was absolutely no need to consult the unions about JobKeeper, Porter ran off to talk to them, and McManus was elevated in status, with all of the media attention this entails, at a crucial point in our history.

For an Australian business person, arbitration in the Fair Work Commission is a cursed destination that must be avoided at all costs. The first adverse outcome from our government’s new relationship with the unions is the exposure of all businesses in the JobKeeper program to arbitration in the commission.

Businesses have not been warned about this nasty sting in the tail of JobKeeper, and already the number of listed disputes is 120 and rising.

In my opinion, exposure to arbitration in the commission is not worth the benefits of accessing JobKeeper payments. Better to shut the doors and sack the staff than to allow decisions about how your business runs to be made by a Fair Work commissioner.

Arbitration means that a commissioner, most often an ex-union official, gets to hear a dispute, then bang the gavel and impose a legally binding decision on an employer about anything at all.

Under the terms of the Fair Work Act, the commission is not allowed to arbitrate disputes between employers and employees or their unions unless the business owner consents. Now that consent has been given on behalf of all business owners in the JobKeeper net by the government. This hasn’t been explained clearly and is a terrible position in which to place business people.

For example, if a cafe owner wants to participate in JobKeeper but the cafe is shut, they might wish to have the staff, having nothing else to do, paint the walls and perform other tasks to give the place a freshen up.

These tasks are outside the ordinary duties of the workers, but nevertheless these are the times we live in, and workers should do what they can to collect their payment and keep their jobs.

If a staff member or a union objects, though, and many do and will, they can list a dispute with the commission. The cafe owner will find themselves summonsed to a court setting to argue the case about whether Mary can paint, because she is a waitress, and whether Jerry can clean out and reorganise the cool room, because he is a cook, and what days and times they might do this, and whether they are happy with the old paintbrushes or want new ones and other such detail.

Once the arguments are complete — and this can take days or weeks — if a settlement doesn’t occur, the commissioner will decide who can do what, and when, and how, and write up their decision. The business must comply because these decisions are binding.

Unfortunately, the government has not emphasised clearly that businesses accessing JobKeeper are caught in the arbitration net, and what this actually means.

Many are in for a rude shock. The first they will know of it is when they receive the notice of listing, and then they will need to seek advice, which is very expensive.

The stress of a hearing in the commission, with the threat of arbitration, is the last thing any business owner needs in a pandemic. There is simply no excuse for the government to have done this, and this one dreadful outcome is going to harm many business owners.