Whatever happened to our industrial relations omnibus bill? Judith Sloan

Whatever happened to our industrial relations omnibus bill?

Attorney-General Christian Porter, left, and Prime Minister Scott Morrison in Canberra. Picture: Sean Davey.
Attorney-General Christian Porter, left, and Prime Minister Scott Morrison in Canberra. Picture: Sean Davey.

Where the bloody hell is the industrial relations omnibus bill? We have been patiently waiting. By rights, it should have been released in budget week. It is getting to the stage where there is little point ­releasing it this year — there is no chance of it being presented to the parliament before it rises.

This is looking like a major cock-up on the part of Industrial Relations Minister Christian Porter and the Coalition government.

That industrial relations club Zoom talkfest — OK, they are just clinging on to the vestiges of the club based on a dying union movement, inconsequential employer groups and overpaid bureaucrats at the Fair Work Commission — was a waste of time.

What was Porter thinking when he chose that route? There was never the prospect of an agreement on the vital issues — casual work, greenfields agreements and award simplification — and we are now in a deeper bog when it comes to resolving them.

As for agreements, why would the government bother to attempt to fix the problems? It’s best to just let the system die a natural death. The system of compliance is over the top and deters employers from taking on workers.

But this wasn’t just a time-­wasting exercise. It also elevated the importance of the unions — now less than 10 per cent of the ­private-­sector workforce — to a level that is neither defensible nor useful.

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There seems to be an odd view held by some members of the Morrison government that ACTU secretary Sally McManus provided a vital role in responding to the challenges of COVID-19. What? By giving her backing to the government spending close to $100bn on the JobKeeper program?

With few exceptions, the unions have opposed any significant changes to awards and agreements given the COVID-19 context. There have been some alterations made by the FWC, including in relation to allowing working from home. But these have been deliberately implemented on a temporary basis with a return to (rigid and ossified) business as usual as soon as possible.

To underscore the extent to which the Morrison government has lost its way, a laughably inadequate — nay, appalling — report was commissioned to consider the deficiencies in enterprise-agreement-making and certification processes.

Undertaken by the Boston Consulting Group, taxpayers should really be jumping up and down to have the substantial fee refunded. A more turgid, uninformative report than “Mapping and Analysis of Enterprise Agreement Making and Approval Processes” would surely have been impossible to produce.

It is meaningless consultant-speak, including visualised process maps (the report has lots of maps and charts with arrows), deep dives into pain points and integration of longer-term activities into strategic programs and development of communication/training plans to take government employees on the change journey. Who writes this bilge?

But here’s the kicker: the report is based on talking to 11 employers (36 were asked) and two unions (11 were asked). Mind you, the ­authors of the report also talked to two members of the FWC and conducted two immersion sessions, whatever they may be.

And here’s another kicker: the report doesn’t tell us anything that anyone with any experience of the making and certification of enterprise agreements doesn’t know. It is too complex, too delayed and too dependent on the FWC member dealing with the matter, and it doesn’t achieve anything anyway. Those are the good points.

The issue is that for industries in which the award rates of pay are close to the market rates, there is nothing enterprise bargaining can achieve for employers. Given the better-off-overall test, or any minor modification thereto, it is simply not worth going through the costly motions. There is nothing the government can do legislatively to change this.

This doesn’t please unions because enterprise agreements are an important source of influence and money. Those clauses that nominate union-related super­annuation funds and income protection insurance companies are useful to embattled unions. Ditto all those clauses about preference for union members and compulsory consultation in relation to workplace change.

The ACTU and the Shop, Distributive and Allied Employees Association have been mightily unimpressed by the actions of the unregistered Retail and Fast Food Workers Union under the leadership of Josh Cullinan. This alter­native union has been able to intervene in agreements reached between employers and the SDA either to have them quashed or modified.

The tension between the RFFWU and the SDA is overt. According to RFFWU, “in return for facilitating the reduction or diminution of working conditions for workers at major retailers or fast food companies, those companies help SDA recruit members”.

Doubtless the ACTU would be happy to see the government enact laws to eliminate or reduce the influence of this competing union. But freedom of association — a principle the government would endorse and that is underpinned by an international convention — means workers must be free to join or not join a union as well as to choose their union.

The Nurses Professional Association of Queensland is a good example of a union offering competition to the Queensland Nurses and Midwives Union. NPAQ members enjoy much lower annual subscriptions and the union declines to fund any political party.

The shemozzle with the omnibus bill is that the government has not dealt with the urgent issue of casual employment and the claims for double-dipping (backpay for leave and other entitlements) that hang over so many employers of regular casual employees. There is a number of class actions being progressed, and they extend well beyond labour hire companies employing mining workers.

There is a clear need for retrospective legislative to clear this up and clarify the definition of casual work while potentially enhancing the right of casual workers to convert to permanent status.

If large-scale greenfields projects are to be part of the post-COVID-19 recovery, there is a similar pressing requirement to synchronise the duration of enterprise agreements with the length of the projects. No one thinks anything will come of award simplification. This process has been going on for decades, and the only achievement has been fewer awards of increasing complexity and impenetrability.

The omnibus bill route was always ill-conceived. Valuable time has been wasted and it has encouraged destructive horse-trading, whereby undesirable concessions are made to achieve something seemingly more important, the antithesis of good public policy.

COVID-19 has exposed the weaknesses in our industrial relations regulations. Assuming we wish to achieve full employment in the shortest possible time, we need to think how we can remove impediments to the creation of jobs, including for those with few skills.