Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2004 15
EMPLOYER MATTERS IN 2003
BRUCE HEARN MACKINNON*
T
he year 2003 was characterised by employer proactivism, and a preparedness to
pursue new legal manoeuvres to prevent or terminate protected industrial action.
A number of employers also resorted to lengthy lockouts (with few positive results) as
bargaining tactics in enterprise negotiations. It was the year employers in the manufacturing and metals sector saw off the unions’ ‘Campaign 2003’, giving little ground
on the key issues of reduced hours and contributions to trust funds for worker entitlements.
The year was a joyous one for employers in the building and construction industry, as
their dreams of a shackled and weakened union movement came a step closer to being
realised, with the introduction of draconian industry-specific legislation by the Howard
Government, arising from the recommendations of the Cole Royal Commission. On a
positive note, the year also witnessed all the members of the ‘industrial relations club’
embrace and declare a common concern for work and family balance issues.
INTRODUCTION
Undertaking a review of employers and industrial relations has always been
problematic for a number of reasons. First, the nature of employment organisations (i.e. firms) is such that industrial relations is simply a means to an end. If
employers could get by without having to concern themselves with industrial
relations matters, then they most assuredly would. This is the complete opposite
case to that of unions, which are formed for the very purpose of engaging in
industrial relations; it’s their raison d’atre. If indeed we inhabited a truly unitarist
world, where workplace conflict ceased to exist, then unions would also cease to
exist. Thus, industrial relations is the very stuff of unions, yet it is very much a
secondary concern for employers.
Even at the organisational level, employer associations have rarely, if ever, had
an exclusive industrial relations focus. More often, their concerns encompass
political lobbying, commerce and trade promotions, supporting industry training
and providing an information service to their members. Traditionally, this
journal’s review of employer matters has focused on the activities and attitudes
of some of the key employer associations. I see no reason to resile from that
approach. However, this review will also examine a few key industrial disputes,
focussing on the role of the individual employers in each case, in addition to any
involvement of employer associations. In doing so, the disputes analysed have
been arbitrarily selected, based on my own interests and an attempt to cover
disputes in different parts of the country, and trying to select those most likely
to have an impact on the broader industrial relations landscape.
* Bowater School of Management and Marketing, Deakin University, Burwood, Victoria 3125,
Australia. Email: bhmackin@deakin.edu.au
THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 46, NO. 2, JUNE 2004, 226–241
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Specifically, this review examines employer responses to Campaign 2003 in
the manufacturing and metals industry, the Australian Industrial Relations
Commission (the Commission)’s annual safety net review, employer positions
with regard to the Australian Council of Trade Union (ACTU)’s redundancy
test case and its work and family test case, and importantly, employer
responses to the Cole Royal Commission into the building and construction
industry. In addition, this review discusses the Grocon/Construction
Forestry Mining and Energy Union (CFMEU) dispute in Victoria, developments
at Hamersley Iron in the Pilbara region of Western Australia, Rio Tinto’s
ongoing dispute involving sacked mineworkers from its Blair Athol mine
in central Queensland, as well as the Geelong Wool Combing lockout in
Victoria.
While 2003 represented the eighth year in federal office of the Howard
Government, 1 January represented six years since the Workplace Relations
Act 1996 (Cwlth) (WR Act) came into operation on 1 January 1997. The
year 2003 also represented 10 years since the former Labor Government
initiated the shift towards enterprise bargaining, with its Industrial Relations
Reform Act 1993 (Cwlth). Thus, it has been a decade since Australia’s industrial
relations system effectively ended its reliance on centralised industry-wide
bargaining, first through the Labor Government’s ‘managed decentralism’,
and for most of the period under the more radical workplace and individually
focussed WR Act.
As the industrial relations system has become more decentralised, the role of
employers and their associations has evolved and adapted to the changed environment. Just as unions have had to adapt to a system increasingly focussed on enterprise bargaining and individual agreement making, so too have employers and
their associations. With large-scale industry-wide bargaining virtually nonexistent, large employers have had to become much more self reliant, and less
in need of the ‘solidaristic’ features of employer associations. On the other hand,
the impact of enterprise bargaining has arguably been to increase the reliance of
small to medium employers on the advice, expertise, and general support
provided by their associations. These trends, which have been growing for
several years, continued to impact on the roles and activities of employers and
their associations in 2003.
If there was one theme which characterised the approach, strategy and tactics
of employers and their associations in 2003 it would be proactive legalism. It was
as if it had taken employers this long to catch on to the possibilities for constraining unions taking industrial action under the WR Act, and 2003 was the
year they began to explore all their legal options. But not satisfied with the
way in which the WR Act already shifts power to employers, at the expense of
organised labour, the major employer associations spent significant resources
during the year, supporting the legislative reform package put together by
the Howard Government in response to the Cole Royal Commission into the
building and construction industry. The common call amongst employer groups
was for the urgent need for new legal powers to enforce the ‘rule of law’ upon
the union movement.
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CAMPAIGN 2003
The year 2003 witnessed the Australian Industry Group (AiG) strongly resist
the metals and manufacturing unions’—led by the Australian Manufacturing
Workers Union (AMWU)— triennial enterprise bargaining agenda, conducted
under the banner of Campaign 2003. Though there were some differences—
geographically and sectorally—in their demands, the unions were broadly
pursuing an 18 per cent pay rise over three years, a 36-hour week and trust fund
contributions of worker’s accrued entitlements. While many firms seemed willing
to bargain on the wages issue, the AiG mounted a determined campaign against
the hours and trust fund component of the unions’ demands.
In early February the AiG called meetings of its members nationwide, to
arm them with information on how to resist pattern bargaining and instead
negotiate ‘genuine’ enterprise deals. The meetings on 5 and 6 February attracted
320 companies in Melbourne, 70 in Sydney and 50 in Brisbane. Whereas
the unions grabbed the initiative in their Campaign 2000 claim, and swiftly
gathered momentum as key companies reached agreements with the unions,
2003 witnessed a far better prepared and more determined employer response.
One of the AiG’s tactics in opposing the unions’ campaign was to lobby its
members against attending company information meetings conducted by the
unions. The AiG was also active on the legal front, pursuing all options to constrain union industrial action. The AiG demonstrated its willingness and preparedness to explore various provisions of s. 170MW of the WR Act to argue
before the Commission to suspend or terminate the unions’ bargaining periods.
The AiG’s Director Workplace Relations, commented that:
. . . we explored every possible option under the Workplace Relations Act, to assist
members . . . [and] . . . there were some interesting outcomes when the Commission
used its powers to issue orders over industrial action . . . [which were] . . . not
seriously challenged by the unions.
Commenting on the Commission’s new use of its general powers, he
stated that the role the Commission played last year, particularly in Victoria, was
excellent.1
Some three months into the union’s industrial campaign, the AiG’s Industrial
Relations Director, Steve Smith, stated that more employers than ever were
negotiating non-union s. 170LK agreements.2 In fact, the AiG claimed that by
the middle of the year nearly one in three manufacturing agreements finalised
in the enterprise bargaining 2003 round had been done on the basis of s. 170LK
non-union agreements.3
By September, despite the unions achieving agreements in contracting,
construction, petrochemicals and the power industry, Dave Oliver, the Victorian
Secretary of the AMWU, acknowledged that the AiG had been somewhat
successful in the mainstream metals industry in resisting the unions’ shorter
hours and trust contributions components of Campaign 2003’s claim.4
The Australian Industry Group’s Peter Nolan provided some useful insights
into reasons for the apparent success of the employer resistance to the
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unions’ Campaign 2003. He stated that a lot of lessons had been learnt from
Campaign 2000, and so ‘this time we started very early, as far back as August
2002, organising meetings of our members’. Of note also, was the AiG’s
assessment of the union strategy of using common expiry dates of agreements
as a means of creating a critical mass to pursue pattern bargaining. Nolan
commented that
if it fails then the unions are confronted with a huge resources problem. If you don’t
achieve your objectives, you have workers at 700 establishments seeking assistance
at the same time.5
He credited this issue as one factor which contributed to the rise in the
making of non-union s. 170LK agreements in the manufacturing sector
in 2003.
In August 2003 the AiG announced that Bob Herbert, who had been with the
organisation for 43 years, and its chief executive since 1996, would be standing
down from his position in early 2004, and replaced by his deputy, Heather Ridout.
This change of leadership is not expected to result in any major change in
direction for the AiG, Ridout having been Herbert’s deputy since 2001, and with
the AiG and its predecessor the Metal Trades Industry Association (MTIA), for
25 years.6
SAFETY
NET REVIEW
The now national wage case or Safety Net Review began with the members of
the ‘IR club’ adopting fairly predictable positions. In response to the ACTU’s
claim for a $24.60-a-week increase in wages for low paid workers, the Australian
Chamber of Commerce and Industry (ACCI) argued for no increase at all, the
AiG supported an $11 increase, and the (then) Workplace Relations Minister,
Tony Abbott, supported a $12 wage increase.
The ACCI, having the broadest membership base of all the employer associations, argued that the economic, industrial and geopolitical circumstances in 2003
were different from those faced by the country in 2002. Specifically, it argued
that the ‘prolonged and severe’ drought and other economic challenges, such as
the global economy and the threat (well founded, as it eventuated) of a new war
in the gulf, were all factors which required a very different decision to by the
Commission than the $18 it awarded in the 2002 Living Wage Case.7
Furthermore, they argued that the ACTU’s claim was based on a false premise,
that annual increases should be made to award pay rates. The ACCI was supported in their ‘no increase’ submission by the National Farmers Federation
(NFF), which based its argument primarily on the economic effects of the
drought.
The AiG supported a moderate increase of $11 for the low paid, but pointed
out that one effect of such an increase would be to further compress relativities,
but not to the point where they would be unworkable.8 They urged the
Commission not to grant the ACTU’s full claim. As this would deliver a ‘net
detrimental’ to the low paid by reducing their employment opportunities and
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provide little extra benefit after extra tax and the loss of welfare support was
taken into account. Nevertheless, they argued that a moderate increase was
appropriate, notwithstanding the uncertain economic conditions, the drought,
the possibility of war in Iraq, the appreciating Australian dollar, and weak global
economic conditions.
Not surprisingly, the Commission awarded a compromise increase of
$15–17-a-week, slightly less than the $18 increase awarded in its 2002
decision. Workers earning up to $731.80-a-week received a $17 increase,
while workers earning above that got a $15 a week increase.9 In handing down
its decision, the Commission recommended that the federal government
conduct an authoritative survey on the employment effects of safety net
adjustments in Australia. The AiG had, in its submission, urged the Commission
to conduct a ‘comprehensive independent survey’ on the overall effects of
safety net adjustments.
On 14 November 2003, the ACTU announced that it would be pursuing a
$26.60-a-week wage rise in its 2004 safety net claim. Employers responded in
the usual manner, with the ACCI’s Director of Workplace Policy, Peter
Anderson, calling the claim ‘excessive and poorly targetted’. Arguing that such
an increase would raise award rates at the top end to over $1000 a week, he said
that this was ‘hardly a case of protecting the low paid’.10 The more things change,
the more things stay the same!
REDUNDANCY
TEST CASE
In May 2003 the Commission began hearing the ACTU’s redundancy test case,
the first attempt to raise the redundancy safety net since the landmark 1984
Termination and Redundancy Test Case decision. In its application the ACTU
sought to:
• increase maximum severance payments from 8 weeks after 4 years to 16 weeks
after 6 years service;
• add up to an extra 4 weeks severance pay for workers aged 45 or over;
• delete the exemption from paying redundancy payments for employers with
15 or fewer employees; and
• extend redundancy entitlements to regular casuals.
The ACCI told the Commission full bench that the ACTU’s claim would
impose massive costs that would discourage essential business restructuring.
Granting the ACTU’s claim would increase the average payout by 300 per cent
for small to medium firms, and represent a ‘massive kick in the guts’ for
employers seeking to restructure.11
The main thrust of the AiG’s response to the ACTU’s claim was that the
Commission, rather than increase redundancy entitlements, should encourage a
policy of ‘corporate rescue’ embodied in insolvency law and recognise that
redundancy provisions can impede or even destroy the process of voluntary
administration.12 The AiG asked the full bench to distinguish between redundancies, which result from corporate insolvency, and those resulting from other
circumstances, and limit redundancy pay to 8 weeks. The case will continue before
the Commission into 2004.
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AND FAMILY TEST CASE
Employer groups were also active in trying to seize the initiative in relation
to the ACTU’s work and family test case. After several months of publicly
canvassing their claim, in June 2003 the ACTU formally lodged its work
and family test case with the Commission (ACTU 2003). The test case
seeks to:
• establish an employees’ right to request variations in hours, obliging employers not to unnecessarily refuse such requests to change hours, start and finish
times and place of work;
• extend unpaid parental leave from 12 to 24 months, and allow for further extensions by consent until the child reaches school age;
• establish a right for full-time workers returning from parental leave to return
to work part-time until the child reaches school age;
• require employers to consult with employees about any significant change
while they are on parental leave;
• enable workers to purchase extra leave; and
• provide employees with the right to unpaid emergency leave for family
emergencies.
Employer groups were quick to appear conciliatory, with ACCI Workplace
Policy Director Peter Anderson stating that while there were aspects of
the ACTU’s claim that employers couldn’t agree to, they were not ‘absolutely
opposed to sensible change that improves work/family balance’.13 He went on
to state that employers were willing to negotiate for greater access to part-time
work. Two months later employer groups made formal responses to the
ACTU’s claims.
The AiG responded by proposing to provide employees with more flexible
annual leave provisions, including options to:
• buy up to six weeks additional annual leave;
• double annual leave by taking it on half pay; and
• forgo their annual leave loading in return for a proportionately longer period
of leave.
They also offered increased flexibility in long-service arrangements, as
well as proposing that award variations include new access to job-share
arrangements and more flexible hours of work. AiG chief executive, Bob
Herbert, stated that work and family balance was becoming ‘an increasingly
significant issue’ for employers.14 The fundamental point of difference
between the ACTU’s claims and the position of the AiG was clearly expressed
by the AiG’s, Peter Nolan, who in an interview for this review, explained that
‘whereas the ACTU’s claim is all about creating new award rights, our position
is that the best place to determine such matters is through negotiation between
employers and employees at the workplace’.15
The ACCI’s proposals were similar to the AiG’s, but also supported providing
part-time or casual work arrangements in industries where it is not currently
allowed. In particular, all restrictions on the use of casual labour should be
removed. The ACCI’s chief executive, Peter Hendy, declared ‘it is about new
flexibilities, not new workers rights. One size does not fit all’.16
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A similar theme was adopted by the Business Council of Australia (BCA) upon
the release of survey results of 68 member companies. The BCA announced that
its survey of work and family issues shows that ‘one-size-fits-all prescription is
not needed’.17 The BCA declared that its survey revealed that its members ‘have
in place a range of strategies, policies and arrangements that actively assist
parents’ to manage their caring responsibilities (Workplace Express, 2 October).
With Hugh Morgan, formerly of the Western Mining Corporation (WMC),
taking over as President in 2004, it will provide an opportunity for the work/
family issue to be put on the agenda for the BCA’s work program for 2004.
Putting the unions somewhat on the back foot, the Master Builders Association
(MBA) and the National Electrical Contractors Association (NECA) applied to
vary the national construction and electrical contracting awards by joining them
to the main test case. No doubt, employers in the construction industry view the
opening up of the industry to part-time and more casualised work would weaken
the unions’ current stranglehold over the workforce.
On 18 December, Commission President Giudice referred all union and
employer applications in the work and family test case to the same full bench.
Developments in 2004 will reveal the outcome of this important test case, but
what is already apparent is that the unions’ attempt to extend workers’ rights
has provided an opportunity for employers to advance further the spread of
part-time and casual employment.
COLE ROYAL COMMISSION
The Cole Royal Commission into the building and construction industry, which
conducted most of its hearings the previous year, handed down its findings in
a 13volume report on 26 March. It found that 23 union officials and eight
employers or employer organisations might have committed criminal offences.
Most of the offences were alleged to have occurred in Western Australia and
Victoria. In hearings and submissions to the Cole Commission, employer groups,
particularly the MBA and the AiG, complained heavily about the behaviour and
practices of the building unions and their officials. The general theme running
through their submissions was the need to enforce the ‘rule of law’ in an
industry where ‘coercive’ monopolistic union power was out of control.
Generally, the employers and their associations found a very receptive ear in
Commissioner Cole.
The MBA’s Richard Calver, who joined the MBA on 3 March 2003—directly
from his previous position as Workplace Relations Minister Tony Abbott’s senior
policy advisor—said that it was now up to state authorities to take the criminal
findings seriously and move to stamp out criminal behaviour in the industry.18
He said that moving on criminal behaviour had to be the ‘flagship of reform’
flowing from the Cole report. The major obstacle to pursuing criminal charges
however, was the fact that in 2003, all State and Territory Governments were in
Labor hands, and obviously unwilling to assist ministers Abbott and Andrews in
their anti-union crusade.
The response of the MBA, the main employer body affected by the
Cole Commission report, was quite instructive, if highly predictable. If union
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opponents regard the CFMEU as an example of the ‘loony left’, then conversely,
the H.R. Nicholls Society is regarded by many as representing the ‘ratbag right’.
In May 2003, William Harnisch, the MBA’s chief executive, addressed the H.R.
Nicholls Society’s XXIVth conference in Perth, to outline the MBA’s response
to the Cole Commission’s recommendations.
Harnisch made it very clear that his organisation wanted less conciliation and
more policing and enforcement of the law as the means to provide greater
stability and certainty to investors in the building and construction industry.
His speech—which was remarkable in its total absence of any consideration of
the underlying causes of friction and conflict in the building and construction
industry—focussed almost exclusively on restoring the ‘rule of law’. In advancing
this argument, Harnisch was glowing in his praise for the work of Commissioner
Cole. With almost religious fervour, Harnisch, in supporting Cole, declared:
. . . all citizens condemn unlawfulness . . . criminality and general lawlessness are
morally objectionable . . . unlawful behaviour as common practice cannot be
countenanced . . . the source of the industry’s real problem is criminal and unlawful
behaviour that undermines the moral fibre of the industry, is un-Australian and, at
a practical level, affects investment and productivity.19
The MBA’s delight at the recommendations of the Cole Commission was
made clear when Harnisch stated that ‘Cole was realistic in his assessment of
the commercial vulnerability of the industry [and] was right in his isolation of
the source of union coercive power’. He explained how Cole’s recommendations,
if implemented, would greatly shift the balance of bargaining power away from
unions and towards employers by declaring that ‘the new order envisaged by Cole
will better enable employers to resist illegitimate tactics used to force issues such
as the implementation of the 36-hour week’. Commenting on the building and
construction industry-specific legislation recommended by Cole, the MBA could
not have been more supportive of the proposals, as Harnisch declared
[T]he statutory authority, provisionally called the Australian Building and
Construction Commission (ABCC), will have wide powers to help thwart those who
want to break the law. This is exactly the outcome that the MBA argued for in its
submission to the Cole inquiry.20
Harnisch went on to warn that the months ahead would require intense
political lobbying by employer groups for the Cole reforms to be passed by the
Senate. With 2003 lying in the middle of the electoral cycle, employer groups
like the MBA were well aware that if important legislative reforms were to be
enacted, then by early 2004 the window of opportunity would in all likelihood
be almost closed.
Some months later the MBA was calling for legislation to go beyond the
Cole recommendations in order to prevent pattern bargaining and to expand the
scope of the secret ballot requirements for taking industrial action. At a Workforce
conference in September, Harnisch argued that the ABCC should be able to ‘stand
in the shoes of the affected party’, by itself initiating injunction proceedings against
unions engaging in pattern bargaining.21 He also argued workplaces with fewer
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than 10 employees should still be required to hold secret ballots before initiating
protected industrial action. Revealing the MBA’s preference for allowing
employers to unilaterally determine wages and conditions, Harnisch also called
for the removal of the requirement in Recommendation 8 of the Cole report,
that enterprise bargaining take place: ‘the idea of freedom of choice also meant
that employers and employees should be free to choose not to bargain’.22
The attitude of employers to the Cole Commission’s recommendations made
it clear that employers were not interested in deregulation, which had been the
rhetoric of their reform agenda when the Howard government came to office.
Deregulation is supported by employers in areas of the economy where organised
labour is weak and the balance of power greatly favours capital, but where union
organisation is strong, powerful doses of regulation and enforcement are required.
Hence, the support for the industry-specific legislation contained in the Building
and Construction Industry Improvement (BCII) Bill. So much for employer opposition to ‘third party interference’. Discussing the likely effect the Bill could
have on the CFMEU, Anthony Forsyth, an ANU law lecturer, stated that
the proposed restrictions in the Bill and ensuing regulations on protected
industrial relations would ‘almost completely close the window for lawful
industrial action.23
The AiG, while supportive of the Bill overall, was concerned that the BCII
Bill’s definition of the construction industry was too broad, which could make it
easier for unions to extend construction terms and conditions of employment to
other industries. Furthermore, it could also open up opportunities for construction
unions, chiefly the CFMEU, to extend their coverage to other industries. The
AiG’s position was at odds with the Australian Chamber of Commerce and
Industry (ACCI) which supported a broader definition of the industry as a means
of constraining unions in as broad as possible area—with the exception of the
housing sector, which is virtually non-unionised anyway.
When the government finally introduced its BCII Bill, the AiG’s concerns had
largely been incorporated. Whether the Bill eventually becomes enacted, will
depend on the Bill negotiating a hostile Senate in 2004. At the time of writing,
the Labor Party’s electoral prospects had improved significantly following the
promotion to leader of Mark Latham, thus reducing the likelihood of the Howard
Government using possible Senate blocking—which, in any case, have to
happen twice—of the BCII Bill as a trigger for a double dissolution of the
Commonwealth Parliament.
GROCON
The year 2003 began with the unravelling of Grocon’s bold attempt to de-unionise
it’s Victorian building and construction operations. Having announced its intention to offer a non-union s. 170LK agreement to its workforce in November 2002,
the company was forced to back away from its aggressive agenda following the
workforce’s overwhelming rejection, by secret ballot, of the company’s proposal
on 5 December.
Prior to this bold attempt to bypass the unions, Grocon, a Grollo family
company based primarily in Victoria, was generally considered to be a moderate
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employer, and rather unique among construction companies in that it directly
employed a large workforce of around 650, rather than relying on subcontractors.
Much like CRA, 10 years earlier, which had been considered a ‘union friendly’
company, this about-face, seemed to catch the unions unawares.
With Bruno Grollo, the patriarch and former head of the family company, now
in retirement, his son and Grocon Director, Daniel Grollo, was apparently keen
to make a statement about his approach to industrial relations in the construction
industry. The more hardline industrial relations position adopted by the company
also coincided with it adopting the law firm Freehills and senior counsel Ian
Douglas, to run its legal strategy. Earlier in 2002, the firm also recruited former
BLF official and CFMEU (Federated Engine Drivers and Fireman’s Association
[FEDFA] Division) Victorian Branch Secretary, John van Camp as its industrial
relations director.
Daniel Grollo signalled a more adversarial approach to company–union
relations when he told a property council lunch in Melbourne that
Grocon had let poor work practices become entrenched in the company’s operations,
but now the game is up. Grocon is now firmly focussed on rooting out the work
practices we believe are unacceptable.24
The deteriorating relationship between Grocon and the unions—primarily the
CFMEU—seems to have gathered momentum following Grocon’s submission
to the Cole Royal Commission into the building and construction industry,
which was quite critical of the unions and alleged that union officials had used
intimidation against Grocon managers.
At any rate, the failure of the company to secure worker support for its nonunion agreement meant that the year 2003 began with Grocon-union relations
in limbo. Aware now, if not before, that ‘on the ground’ the union was firmly
entrenched amongst the workforce, Grocon proceeded to pursue a legalistic route
to achieve its desired changes to workplace conditions and work practices. Trying
to achieve through the courts and the Commission what it couldn’t achieve ‘on
the job’, Grocon sought to get protected industrial action declared unlawful via
the issuing of a s. 166A certificate.25
On 21 January, Daniel Grollo and CFMEU Victorian Branch Secretary, Martin
Kingham, issued a joint statement declaring that the company had agreed to
adjourn its legal action against the unions and its officials, while the union had
suspended planned industrial action. However, this apparent truce was put in
doubt in early February when all major construction sites in Melbourne were
affected by industrial action as building workers rallied in support of CFMEU
State Secretary, Martin Kingham, when he appeared before the Magistrates Court
over his refusal to hand over summoned union documents to the Cole Royal
Commission. The rally closed Grocon sites, which the company claimed was a
breach of the peace pact, as the union had promised not to take further industrial
action.
The company applied for a s. 166A certificate against the union as well as
pursuing a s. 170MW bid to end the bargaining period. The union then responded
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by re-imposing its previous work bans and planned industrial action on all of
Grocon’s sites. However, this sudden show of force by both parties convinced
both the company and union to strike a peace deal later that same day.26
Throughout the dispute, the federal Minister for Workplace Relations, Tony
Abbott, applauded Grocon’s attempt to bypass the unions, in much the same
way that former Minister Peter Reith did during the epic waterfront dispute in
1998. At one stage however, the peace deal was jeopardised by the intervention
of Abbott, who appealed against a decision of the Commission to refuse
certification of the one non-union deal which Grocon had reached with two of
its management employees. Ultimately, the Commission rejected Minister
Abbott’s appeal.27
The Commission found that Grocon had put its s. 170LK offer to employees
under five different company names, but that employees were not aware that
their colleagues’ designated employers were different, and that they were
voting on different deals. The strategy of Grocon management, like Patricks
in 1998, was based on legalistic intrigue, rather than a serious attempt to
win over the ‘hearts and minds’ of its workforce. This is why the de-unionising
attempt failed.
In September, renewed industrial unrest broke out at Grocon’s largest project,
the MCG development site, over the terms of a site agreement. By 17 November
however—almost 12 months since Grocon had attempted to by-pass the
unions—an agreement was certified by the Commission, effectively ending all
outstanding disputes between the company and the unions.28 For the time
being at least, Grocon seems to have withdrawn from the Howard Government’s
‘coalition of the willing’ in its war on [union] terror, and seems to be more
concerned with keeping its major projects on schedule.
HAMERSLEY IRON
Some 10 years after Rio Tinto (then CRA) executed a stunning de-unionisation
strategy at its Hamersley Iron mines in the remote Pilbara region of Western
Australia, foreshadowing the de-unionisation of their other metalliferous and
aluminium smelting operations, 2003 witnessed a number of twists in the
continuing efforts of unions to regain a foothold in this once 100 per cent
unionised region.
Rio Tinto management have long demonstrated an ability to introduce and
maintain predominantly non-unionised workplaces, whether operating under the
former Labor Government’s Industrial Relations Reform Act 1993 using Enterprise
Flexibility Agreements, the Workplace Relations Act using Australian Workplace
Agreements (AWAs), or the former Western Australian Government’s individual
Workplace Agreements.
One of the stand-out features of Rio Tinto’s management of industrial relations,
has for many years, been its ability to operate quite strategically, planning and
preparing well into the future. Fearing that the Gallop Labor Government’s
reforms to industrial laws would make it increasingly difficult to keep unions out
of its workplaces, in 2002 Rio Tinto sought to shift all its Western Australian
workforces onto non-union s. 170LK agreements. In the first major rebuff for a
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decade, its largely non-union workforces at Hamersley iron, Dampier Salt and
Argyle Diamonds overwhelmingly voted down the company’s proposal.29
The union movement interpreted these results as evidence of a need for
renewed union organisation at Hamersley. However, in an attempt to avoid the
debilitating demarcation conflicts between the Australian Workers Union
(AWU) and the CFMEU, as well as to respond to the apparent local community
wishes for a more grassroots form of unionism, the ACTU launched a unique
organising campaign, based around a new union body, the Pilbara Mineworkers
Union (PMU).30
Rio Tinto management at Hamersley, having had their s. 170 LK proposals
rejected, decided to offer AWAs to its workforce instead, as a means of shifting
from the state jurisdiction to the federal sphere, under the WR Act. By early
2003, all but around 10 per cent of Hamersley’s 2000-odd workforce had signed
AWAs. However, as the new Western Australian industrial relations regime
provides for arbitrated enterprise orders when bargaining negotiations become
deadlocked, the union’s saw this as an opportunity to improve the pay and
conditions of the ten per cent of Hamersley’s workforce who had refused to
sign the company’s AWAs.
While unions such as the CFMEU, AMWU and Communications Electrical
and Plumbing Union (CEPU) were preparing to launch such a claim, Hamersley
management were negotiating a consent Federal award with the AWU.31
Management had once again out-manoeuvred the unions. Under a Federal
consent award, the workers would be entitled to a safety net, largely reflecting
the work practices brought in under the Hamersley AWAs. Importantly for
management however, it maintains the coverage rights for the relatively
compliant AWU, while freezing out the more militant CFMEU.
The proposed consent Mining Industry Rio Tinto Iron Ore Award 2003
provides for non-AWA workers, at least initially, to move to the same pay
and conditions as those on AWAs. The company also signed a memorandum of
understanding (MOU) with the AWU, to apply at both Hamersley and at its
nearby Robe River site. The MOU outlines organising rights and the
union’s ability to represent members in the company’s fair treatment grievance
handling process and streamlines induction for AWU officials visiting Rio
Tinto sites.
The state unions frozen out of the Rio Tinto-AWU deal chose to
continue with their pursuit of state-based orders, and at the time of writing
were challenging the Commissions jurisdiction to register the federal consent
award.
While the developments were significant, in that Rio Tinto management had
agreed to a new award recognising union coverage, they had also successfully
driven a wedge between the competing unions, guaranteeing that inter-union
squabbles would continue for some time. It had also pulled the rug from under
the fledgling community-based PMU, just as it was showing signs of gathering
genuine rank-and-file support.32 It is likely that Rio Tinto management will point
to the union infighting as evidence that the unions are more concerned with
their selfish turf wars than they are with the working conditions and interests of
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workers in the Pilbara. Only time will tell if such a judgement is proven to be
well founded.
BLAIR ATHOL
Meanwhile, at other Rio Tinto operations on the East Coast of Australia, industrial relations continued to take alternative courses. First, in 2003 the CFMEU
and Rio Tinto successfully negotiated their second three-year certified agreement
covering their once strife-ridden Hunter Valley mine.33
On another front however, hostilities continued between Rio Tinto’s subsidiary,
Pacific Coal, and the CFMEU over the fate of 16 former Blair Athol mineworkers,
sacked in 1998, at the peak of the battle between the company and the CFMEU
in the coal industry. The Blair Athol mine in central Queensland was but one of
a number of locations of intense struggle, as the company attempted to implement
its de-unionising agenda throughout its coal operations in the late 1990s.34
Although in 2001 the Commission found that the company had conspired to
make redundant a blacklist of union activists, and ordered their reinstatement,
this decision was eventually overturned on appeal to the full bench of the
Commission. In December 2002, though agreeing that a blacklist existed and
that the 16 workers were unfairly dismissed, a full bench majority quashed the
reinstatement order and awarded the sacked workers no compensation.35 The
Commission’s peculiar rationale was that regardless of procedural fairness, the
company had established a business case for cutting staff numbers.
However, in response to another application from the CFMEU, in July 2003
the Commission ruled that the 16 workers be given preference of employment
at the company’s new Hail Creek mine nearby.36 The new Hail Creek mine,
owned by Queensland Coal, a subsidiary of Rio Tinto, began recruiting workers
in September 2002, but the 16 former Blair Athol workers all failed to get past
the initial screening phase. The full bench found that the recruitment process at
Hail Creek operated unfairly towards them. In fact, the bench found that the
company’s own witnesses acknowledged that the former Blair Athol workers were
treated differently to other job applicants.
This finding is consistent with the evidence uncovered at other Rio Tinto coal
mines, in particular at Mount Thorley and the Hunter Valley No. 1 Mine, where
management was found by the Commission to have discriminated against union
activists in selecting workers for redundancy.37 As has generally been the case in
the long running battle between the CFMEU and Rio Tinto in the coal industry,
the company chose not to comply with the Commission’s decision but to appeal
to the Federal Court for a stay of the Commission’s order. On 18 December 2003,
a full bench of the Federal Court rejected the company’s application for a stay
of the Commission’s order that the 16 workers be given preference of employment at the Hail Creek mine. However, this was not the end of the dispute, for
a federal Court hearing was scheduled for February 2004 to hear the company’s
application to overturn the Commission’s order.
In this case, the employer’s strategy seems to have been to make it as drawnout and expensive as possible for the sacked workers to regain employment with
Rio Tinto. The message this sends to its current workforce is that the unions are
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not capable of achieving realisable gains for their members, and that even when
they do win grievance cases, they come at very significant costs. It also demonstrates that although certified agreements between Rio Tinto and the CFMEU
now operate in the coal industry, these outcomes can only be considered truces
in an ongoing war, which seems to have a long way to go before a clear victor is
declared.
GEELONG WOOL COMBING
The year 2003 also witnessed a number of lengthy lockouts, as some manufacturing employers—such as the glass manufacturer ACI in Box Hill and the
car components manufacturer FMP in Ballarat—sought to flex their own
muscles during enterprise bargaining negotiations. However, one case in
particular stands out as worthy of some analysis. On 28 April 2003, around
100 textile workers at the Geelong Wool Combing (GWC) factory found
themselves locked out of their workplace on full pay, ahead of a protected
lockout commencing five days later. Leigh Schmitt, managing director of
BWK Holdings, GWC’s parent company, stated that the key issue in the dispute
with the Textile Clothing and Footwear Union of Australia (TCFUA) was the
company’s proposal to shift from a seven-day, 24-hour operation (three shifts a
day), to a five-day, 24-hour operation as needed.38 The company sought to make
this change without having to maintain the penalties built into the rates for
working weekends and public holidays, but this was opposed by the union.
Against a background of drought-induced high wool prices and excess
processing capacity worldwide, the company was clearly facing economic
difficulties, and so decided to pursue a radical cost reduction strategy. In what
was surely one of the longest lockouts yet seen in Australia, GWC management
kept the gates closed for five months in an effort to force its workforce to accept
the reduced pay package.
The resilience of the workforce and their union, the TCFUA, finally convinced
management that its employees were not going to accept the reduced wages, and
so in October 2003, as they had promised, they closed the plant. The company
then tried to avoid paying workers their redundancy payments for the period that
they were locked out by management39 however, this was overruled by the
Commission, which declared that the workers’ continuity of employment had
not been effected by the lockout.40
The end result of this dispute was that the workers, supported by their union,
successfully withstood the company’s lockout, but in the process they all lost
their jobs because of company closure. In a region like Geelong, with limited
employment opportunities, other employers are now armed with ‘evidence’ that
militant unionism only leads to job losses. No doubt, they will be reminding
workers of the closure of this plant the next time a major industrial dispute
breaks out in the greater Geelong region.
CONCLUSION
Looking back on industrial relations events in 2003, focussing on the policies
and actions of major employers and their associations, the year might best be
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described as one of testing and prodding. In particular, the responses of employers
and their associations to the unions’ Campaign 2003 was instructive for the efforts
which some major employers went to test, to the ‘nth’ degree, the powers of the
Commission to prevent and/or terminate industrial action by workers. Even the
employers, seemed to be genuinely surprised—and obviously pleased—at the way
the Commission ‘discovered’ new ways to constrain union activity.
A decade of enterprise bargaining has taught employers valuable lessons in
negotiation tactics, which they are beginning to demonstrate, by their proactive
positions taken during last year’s bargaining rounds. In particular, there is
some evidence that more employers are having successes in getting non-union
collective s. 170LK agreements registered.
Employers continue to be actively supportive of the Howard Government’s
industrial relations reform agenda, and will be hoping that the tough new enforcement and policing measures planned for the building industry manage to
negotiate their way through the Senate in 2004. No doubt, with a federal
election due later this year, and with growing uncertainty surrounding the
Howard Government’s hold on office, employer organisations may be expected
to commence planning for the possibility of a changed political and regulatory
environment. For the time being however, it’s steady as she goes.
REFERENCES
1. Nolan P (2004) AiG Director Workplace Relations. Interview, 2 March.
2. Workplace Express (2003) AIG claims Campaign 2003 action threatening the economy. 5 June.
3. Industry Today (2003) Enterprise bargaining 2003: More employees adopt to negotiate
without unions. Edition 25, June.
4. Workplace Express (2003) Campaign 2003 in Victoria: The verdict so far. 12 September.
5. Nolan P (2004) AiG Director Workplace Relations. Interview, 2 March.
6. Colebatch T (2003) Economist to head industry group. The Age 13 August, p. 2.
7. Australian Chamber of Commerce and Industry (2003) 2003 Safety Net Review Case: Submission
to the Australian Industrial Relations Commission. February.
8. Australian Industry Group and Engineering Employers Association, South Australia (2003)
2003 Safety Net Review Case: Submission to the Australian Industrial Relations Commission. February.
9. Australian Industrial Relations Commission (2003) 2003 Safety Net Review Decision. PR002003,
6 May.
10. Workplace Express (2003) ACTU goes for $26.60-a-week rise. 14 November.
11. Workforce (2003) Redundancy case crippling: ACCI. Issue 1404, 27 June.
12. Australian Industry Group (2003) Ai Group Strongly Opposes Redundancy test Claim. Industry
No. 25, July.
13. Workplace Express (2003) ACTU seeks new work and family rights. 24 June.
14. Workplace Express (2003) AiG offers additional leave, job share arrangements. 18 August.
15. Nolan P (2004) AiG Director Workplace Relations. Interview, 2 March.
16. Workplace Express (2003) Flexibility not workers rights key to test case: ACCI. 19 August.
17. Workplace Express (2003) Survey shows work/family prescription not required: BCA. 2 October.
18. Workplace Express (2003) Cole finds 31 cases of criminal conduct. 26 March.
19. Harnisch W (2003) Reflections on the Recommendations of the Cole Royal Commission. Speech to
the H.R. Nicholls Society’s XXIVth Conference, 4 May, Perth, Australia.
20. Harnisch, Op cit.
21. Workforce (2003) Builders hostage to pattern deals. Issue 1415, 12 September.
22. Workplace Express (2003) MBA calls for tightening of Cole bargaining curbs. 8 September.
E M P L O Y E R M AT T E R S
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2003
241
23. Forsyth A (2003) A Bill for an Act to Transform Australian Industrial Relations Culture: Recent
Legislative Initiatives at the Federal Level. Speech to the Queensland Industrial Relations Society
Annual Conference, 26 September, Gold Coast.
24. Grollo D (2002) Speech to property council luncheon. Melbourne, 12 November.
25. Workplace Express (2003) Grocon threatens lockout. 20 January.
26. Workplace Express (2003) Ceasefire ends at Grocon. 7 February.
27. Australian Industrial Relations Commission (2003) Minister for Employment and Workplace
Relations, re Grocon Pty Ltd Enterprise Agreement (Victoria). PR933230, 19 June.
28. The CFMEU and Grocon MCG Construction Agreement 2003 (2003). PR941239, 17 November.
29. Workplace Express (2002) Pilbara workers reject Rio’s bid to flee state system. 5 April.
30. Ellem B (2003) New unionism in the old economy: Community and collectivism in the Pilbara.
Journal of Industrial Relations 45 (4).
31. Workplace Express (2003) Parity under Pilbara award, but battle looming. 21 July.
32. Ellem B (2004) The dialectics of scale: Union transformation in the Pilbara, 1999–2003.
New Economies: New Industrial Relations. Proceedings of the 18th AIRAANZ Conference,
3–6 February, Noosa, Queensland.
33. Hunter Valley Operations Certified Agreement 2003 (2003). PR941784, 10 April.
34. Hearn Mackinnon (2001) Clash of the Titans: Rio Tinto vs the CFMEU. Current Research in
Industrial Relations: Refereed Proceedings of the 15th Association of Industrial Relations
Academics Australia and New Zealand (AIRAANZ) C
BRUCE HEARN MACKINNON*
T
he year 2003 was characterised by employer proactivism, and a preparedness to
pursue new legal manoeuvres to prevent or terminate protected industrial action.
A number of employers also resorted to lengthy lockouts (with few positive results) as
bargaining tactics in enterprise negotiations. It was the year employers in the manufacturing and metals sector saw off the unions’ ‘Campaign 2003’, giving little ground
on the key issues of reduced hours and contributions to trust funds for worker entitlements.
The year was a joyous one for employers in the building and construction industry, as
their dreams of a shackled and weakened union movement came a step closer to being
realised, with the introduction of draconian industry-specific legislation by the Howard
Government, arising from the recommendations of the Cole Royal Commission. On a
positive note, the year also witnessed all the members of the ‘industrial relations club’
embrace and declare a common concern for work and family balance issues.
INTRODUCTION
Undertaking a review of employers and industrial relations has always been
problematic for a number of reasons. First, the nature of employment organisations (i.e. firms) is such that industrial relations is simply a means to an end. If
employers could get by without having to concern themselves with industrial
relations matters, then they most assuredly would. This is the complete opposite
case to that of unions, which are formed for the very purpose of engaging in
industrial relations; it’s their raison d’atre. If indeed we inhabited a truly unitarist
world, where workplace conflict ceased to exist, then unions would also cease to
exist. Thus, industrial relations is the very stuff of unions, yet it is very much a
secondary concern for employers.
Even at the organisational level, employer associations have rarely, if ever, had
an exclusive industrial relations focus. More often, their concerns encompass
political lobbying, commerce and trade promotions, supporting industry training
and providing an information service to their members. Traditionally, this
journal’s review of employer matters has focused on the activities and attitudes
of some of the key employer associations. I see no reason to resile from that
approach. However, this review will also examine a few key industrial disputes,
focussing on the role of the individual employers in each case, in addition to any
involvement of employer associations. In doing so, the disputes analysed have
been arbitrarily selected, based on my own interests and an attempt to cover
disputes in different parts of the country, and trying to select those most likely
to have an impact on the broader industrial relations landscape.
* Bowater School of Management and Marketing, Deakin University, Burwood, Victoria 3125,
Australia. Email: bhmackin@deakin.edu.au
THE JOURNAL OF INDUSTRIAL RELATIONS, VOL. 46, NO. 2, JUNE 2004, 226–241
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Specifically, this review examines employer responses to Campaign 2003 in
the manufacturing and metals industry, the Australian Industrial Relations
Commission (the Commission)’s annual safety net review, employer positions
with regard to the Australian Council of Trade Union (ACTU)’s redundancy
test case and its work and family test case, and importantly, employer
responses to the Cole Royal Commission into the building and construction
industry. In addition, this review discusses the Grocon/Construction
Forestry Mining and Energy Union (CFMEU) dispute in Victoria, developments
at Hamersley Iron in the Pilbara region of Western Australia, Rio Tinto’s
ongoing dispute involving sacked mineworkers from its Blair Athol mine
in central Queensland, as well as the Geelong Wool Combing lockout in
Victoria.
While 2003 represented the eighth year in federal office of the Howard
Government, 1 January represented six years since the Workplace Relations
Act 1996 (Cwlth) (WR Act) came into operation on 1 January 1997. The
year 2003 also represented 10 years since the former Labor Government
initiated the shift towards enterprise bargaining, with its Industrial Relations
Reform Act 1993 (Cwlth). Thus, it has been a decade since Australia’s industrial
relations system effectively ended its reliance on centralised industry-wide
bargaining, first through the Labor Government’s ‘managed decentralism’,
and for most of the period under the more radical workplace and individually
focussed WR Act.
As the industrial relations system has become more decentralised, the role of
employers and their associations has evolved and adapted to the changed environment. Just as unions have had to adapt to a system increasingly focussed on enterprise bargaining and individual agreement making, so too have employers and
their associations. With large-scale industry-wide bargaining virtually nonexistent, large employers have had to become much more self reliant, and less
in need of the ‘solidaristic’ features of employer associations. On the other hand,
the impact of enterprise bargaining has arguably been to increase the reliance of
small to medium employers on the advice, expertise, and general support
provided by their associations. These trends, which have been growing for
several years, continued to impact on the roles and activities of employers and
their associations in 2003.
If there was one theme which characterised the approach, strategy and tactics
of employers and their associations in 2003 it would be proactive legalism. It was
as if it had taken employers this long to catch on to the possibilities for constraining unions taking industrial action under the WR Act, and 2003 was the
year they began to explore all their legal options. But not satisfied with the
way in which the WR Act already shifts power to employers, at the expense of
organised labour, the major employer associations spent significant resources
during the year, supporting the legislative reform package put together by
the Howard Government in response to the Cole Royal Commission into the
building and construction industry. The common call amongst employer groups
was for the urgent need for new legal powers to enforce the ‘rule of law’ upon
the union movement.
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CAMPAIGN 2003
The year 2003 witnessed the Australian Industry Group (AiG) strongly resist
the metals and manufacturing unions’—led by the Australian Manufacturing
Workers Union (AMWU)— triennial enterprise bargaining agenda, conducted
under the banner of Campaign 2003. Though there were some differences—
geographically and sectorally—in their demands, the unions were broadly
pursuing an 18 per cent pay rise over three years, a 36-hour week and trust fund
contributions of worker’s accrued entitlements. While many firms seemed willing
to bargain on the wages issue, the AiG mounted a determined campaign against
the hours and trust fund component of the unions’ demands.
In early February the AiG called meetings of its members nationwide, to
arm them with information on how to resist pattern bargaining and instead
negotiate ‘genuine’ enterprise deals. The meetings on 5 and 6 February attracted
320 companies in Melbourne, 70 in Sydney and 50 in Brisbane. Whereas
the unions grabbed the initiative in their Campaign 2000 claim, and swiftly
gathered momentum as key companies reached agreements with the unions,
2003 witnessed a far better prepared and more determined employer response.
One of the AiG’s tactics in opposing the unions’ campaign was to lobby its
members against attending company information meetings conducted by the
unions. The AiG was also active on the legal front, pursuing all options to constrain union industrial action. The AiG demonstrated its willingness and preparedness to explore various provisions of s. 170MW of the WR Act to argue
before the Commission to suspend or terminate the unions’ bargaining periods.
The AiG’s Director Workplace Relations, commented that:
. . . we explored every possible option under the Workplace Relations Act, to assist
members . . . [and] . . . there were some interesting outcomes when the Commission
used its powers to issue orders over industrial action . . . [which were] . . . not
seriously challenged by the unions.
Commenting on the Commission’s new use of its general powers, he
stated that the role the Commission played last year, particularly in Victoria, was
excellent.1
Some three months into the union’s industrial campaign, the AiG’s Industrial
Relations Director, Steve Smith, stated that more employers than ever were
negotiating non-union s. 170LK agreements.2 In fact, the AiG claimed that by
the middle of the year nearly one in three manufacturing agreements finalised
in the enterprise bargaining 2003 round had been done on the basis of s. 170LK
non-union agreements.3
By September, despite the unions achieving agreements in contracting,
construction, petrochemicals and the power industry, Dave Oliver, the Victorian
Secretary of the AMWU, acknowledged that the AiG had been somewhat
successful in the mainstream metals industry in resisting the unions’ shorter
hours and trust contributions components of Campaign 2003’s claim.4
The Australian Industry Group’s Peter Nolan provided some useful insights
into reasons for the apparent success of the employer resistance to the
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unions’ Campaign 2003. He stated that a lot of lessons had been learnt from
Campaign 2000, and so ‘this time we started very early, as far back as August
2002, organising meetings of our members’. Of note also, was the AiG’s
assessment of the union strategy of using common expiry dates of agreements
as a means of creating a critical mass to pursue pattern bargaining. Nolan
commented that
if it fails then the unions are confronted with a huge resources problem. If you don’t
achieve your objectives, you have workers at 700 establishments seeking assistance
at the same time.5
He credited this issue as one factor which contributed to the rise in the
making of non-union s. 170LK agreements in the manufacturing sector
in 2003.
In August 2003 the AiG announced that Bob Herbert, who had been with the
organisation for 43 years, and its chief executive since 1996, would be standing
down from his position in early 2004, and replaced by his deputy, Heather Ridout.
This change of leadership is not expected to result in any major change in
direction for the AiG, Ridout having been Herbert’s deputy since 2001, and with
the AiG and its predecessor the Metal Trades Industry Association (MTIA), for
25 years.6
SAFETY
NET REVIEW
The now national wage case or Safety Net Review began with the members of
the ‘IR club’ adopting fairly predictable positions. In response to the ACTU’s
claim for a $24.60-a-week increase in wages for low paid workers, the Australian
Chamber of Commerce and Industry (ACCI) argued for no increase at all, the
AiG supported an $11 increase, and the (then) Workplace Relations Minister,
Tony Abbott, supported a $12 wage increase.
The ACCI, having the broadest membership base of all the employer associations, argued that the economic, industrial and geopolitical circumstances in 2003
were different from those faced by the country in 2002. Specifically, it argued
that the ‘prolonged and severe’ drought and other economic challenges, such as
the global economy and the threat (well founded, as it eventuated) of a new war
in the gulf, were all factors which required a very different decision to by the
Commission than the $18 it awarded in the 2002 Living Wage Case.7
Furthermore, they argued that the ACTU’s claim was based on a false premise,
that annual increases should be made to award pay rates. The ACCI was supported in their ‘no increase’ submission by the National Farmers Federation
(NFF), which based its argument primarily on the economic effects of the
drought.
The AiG supported a moderate increase of $11 for the low paid, but pointed
out that one effect of such an increase would be to further compress relativities,
but not to the point where they would be unworkable.8 They urged the
Commission not to grant the ACTU’s full claim. As this would deliver a ‘net
detrimental’ to the low paid by reducing their employment opportunities and
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provide little extra benefit after extra tax and the loss of welfare support was
taken into account. Nevertheless, they argued that a moderate increase was
appropriate, notwithstanding the uncertain economic conditions, the drought,
the possibility of war in Iraq, the appreciating Australian dollar, and weak global
economic conditions.
Not surprisingly, the Commission awarded a compromise increase of
$15–17-a-week, slightly less than the $18 increase awarded in its 2002
decision. Workers earning up to $731.80-a-week received a $17 increase,
while workers earning above that got a $15 a week increase.9 In handing down
its decision, the Commission recommended that the federal government
conduct an authoritative survey on the employment effects of safety net
adjustments in Australia. The AiG had, in its submission, urged the Commission
to conduct a ‘comprehensive independent survey’ on the overall effects of
safety net adjustments.
On 14 November 2003, the ACTU announced that it would be pursuing a
$26.60-a-week wage rise in its 2004 safety net claim. Employers responded in
the usual manner, with the ACCI’s Director of Workplace Policy, Peter
Anderson, calling the claim ‘excessive and poorly targetted’. Arguing that such
an increase would raise award rates at the top end to over $1000 a week, he said
that this was ‘hardly a case of protecting the low paid’.10 The more things change,
the more things stay the same!
REDUNDANCY
TEST CASE
In May 2003 the Commission began hearing the ACTU’s redundancy test case,
the first attempt to raise the redundancy safety net since the landmark 1984
Termination and Redundancy Test Case decision. In its application the ACTU
sought to:
• increase maximum severance payments from 8 weeks after 4 years to 16 weeks
after 6 years service;
• add up to an extra 4 weeks severance pay for workers aged 45 or over;
• delete the exemption from paying redundancy payments for employers with
15 or fewer employees; and
• extend redundancy entitlements to regular casuals.
The ACCI told the Commission full bench that the ACTU’s claim would
impose massive costs that would discourage essential business restructuring.
Granting the ACTU’s claim would increase the average payout by 300 per cent
for small to medium firms, and represent a ‘massive kick in the guts’ for
employers seeking to restructure.11
The main thrust of the AiG’s response to the ACTU’s claim was that the
Commission, rather than increase redundancy entitlements, should encourage a
policy of ‘corporate rescue’ embodied in insolvency law and recognise that
redundancy provisions can impede or even destroy the process of voluntary
administration.12 The AiG asked the full bench to distinguish between redundancies, which result from corporate insolvency, and those resulting from other
circumstances, and limit redundancy pay to 8 weeks. The case will continue before
the Commission into 2004.
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AND FAMILY TEST CASE
Employer groups were also active in trying to seize the initiative in relation
to the ACTU’s work and family test case. After several months of publicly
canvassing their claim, in June 2003 the ACTU formally lodged its work
and family test case with the Commission (ACTU 2003). The test case
seeks to:
• establish an employees’ right to request variations in hours, obliging employers not to unnecessarily refuse such requests to change hours, start and finish
times and place of work;
• extend unpaid parental leave from 12 to 24 months, and allow for further extensions by consent until the child reaches school age;
• establish a right for full-time workers returning from parental leave to return
to work part-time until the child reaches school age;
• require employers to consult with employees about any significant change
while they are on parental leave;
• enable workers to purchase extra leave; and
• provide employees with the right to unpaid emergency leave for family
emergencies.
Employer groups were quick to appear conciliatory, with ACCI Workplace
Policy Director Peter Anderson stating that while there were aspects of
the ACTU’s claim that employers couldn’t agree to, they were not ‘absolutely
opposed to sensible change that improves work/family balance’.13 He went on
to state that employers were willing to negotiate for greater access to part-time
work. Two months later employer groups made formal responses to the
ACTU’s claims.
The AiG responded by proposing to provide employees with more flexible
annual leave provisions, including options to:
• buy up to six weeks additional annual leave;
• double annual leave by taking it on half pay; and
• forgo their annual leave loading in return for a proportionately longer period
of leave.
They also offered increased flexibility in long-service arrangements, as
well as proposing that award variations include new access to job-share
arrangements and more flexible hours of work. AiG chief executive, Bob
Herbert, stated that work and family balance was becoming ‘an increasingly
significant issue’ for employers.14 The fundamental point of difference
between the ACTU’s claims and the position of the AiG was clearly expressed
by the AiG’s, Peter Nolan, who in an interview for this review, explained that
‘whereas the ACTU’s claim is all about creating new award rights, our position
is that the best place to determine such matters is through negotiation between
employers and employees at the workplace’.15
The ACCI’s proposals were similar to the AiG’s, but also supported providing
part-time or casual work arrangements in industries where it is not currently
allowed. In particular, all restrictions on the use of casual labour should be
removed. The ACCI’s chief executive, Peter Hendy, declared ‘it is about new
flexibilities, not new workers rights. One size does not fit all’.16
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A similar theme was adopted by the Business Council of Australia (BCA) upon
the release of survey results of 68 member companies. The BCA announced that
its survey of work and family issues shows that ‘one-size-fits-all prescription is
not needed’.17 The BCA declared that its survey revealed that its members ‘have
in place a range of strategies, policies and arrangements that actively assist
parents’ to manage their caring responsibilities (Workplace Express, 2 October).
With Hugh Morgan, formerly of the Western Mining Corporation (WMC),
taking over as President in 2004, it will provide an opportunity for the work/
family issue to be put on the agenda for the BCA’s work program for 2004.
Putting the unions somewhat on the back foot, the Master Builders Association
(MBA) and the National Electrical Contractors Association (NECA) applied to
vary the national construction and electrical contracting awards by joining them
to the main test case. No doubt, employers in the construction industry view the
opening up of the industry to part-time and more casualised work would weaken
the unions’ current stranglehold over the workforce.
On 18 December, Commission President Giudice referred all union and
employer applications in the work and family test case to the same full bench.
Developments in 2004 will reveal the outcome of this important test case, but
what is already apparent is that the unions’ attempt to extend workers’ rights
has provided an opportunity for employers to advance further the spread of
part-time and casual employment.
COLE ROYAL COMMISSION
The Cole Royal Commission into the building and construction industry, which
conducted most of its hearings the previous year, handed down its findings in
a 13volume report on 26 March. It found that 23 union officials and eight
employers or employer organisations might have committed criminal offences.
Most of the offences were alleged to have occurred in Western Australia and
Victoria. In hearings and submissions to the Cole Commission, employer groups,
particularly the MBA and the AiG, complained heavily about the behaviour and
practices of the building unions and their officials. The general theme running
through their submissions was the need to enforce the ‘rule of law’ in an
industry where ‘coercive’ monopolistic union power was out of control.
Generally, the employers and their associations found a very receptive ear in
Commissioner Cole.
The MBA’s Richard Calver, who joined the MBA on 3 March 2003—directly
from his previous position as Workplace Relations Minister Tony Abbott’s senior
policy advisor—said that it was now up to state authorities to take the criminal
findings seriously and move to stamp out criminal behaviour in the industry.18
He said that moving on criminal behaviour had to be the ‘flagship of reform’
flowing from the Cole report. The major obstacle to pursuing criminal charges
however, was the fact that in 2003, all State and Territory Governments were in
Labor hands, and obviously unwilling to assist ministers Abbott and Andrews in
their anti-union crusade.
The response of the MBA, the main employer body affected by the
Cole Commission report, was quite instructive, if highly predictable. If union
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opponents regard the CFMEU as an example of the ‘loony left’, then conversely,
the H.R. Nicholls Society is regarded by many as representing the ‘ratbag right’.
In May 2003, William Harnisch, the MBA’s chief executive, addressed the H.R.
Nicholls Society’s XXIVth conference in Perth, to outline the MBA’s response
to the Cole Commission’s recommendations.
Harnisch made it very clear that his organisation wanted less conciliation and
more policing and enforcement of the law as the means to provide greater
stability and certainty to investors in the building and construction industry.
His speech—which was remarkable in its total absence of any consideration of
the underlying causes of friction and conflict in the building and construction
industry—focussed almost exclusively on restoring the ‘rule of law’. In advancing
this argument, Harnisch was glowing in his praise for the work of Commissioner
Cole. With almost religious fervour, Harnisch, in supporting Cole, declared:
. . . all citizens condemn unlawfulness . . . criminality and general lawlessness are
morally objectionable . . . unlawful behaviour as common practice cannot be
countenanced . . . the source of the industry’s real problem is criminal and unlawful
behaviour that undermines the moral fibre of the industry, is un-Australian and, at
a practical level, affects investment and productivity.19
The MBA’s delight at the recommendations of the Cole Commission was
made clear when Harnisch stated that ‘Cole was realistic in his assessment of
the commercial vulnerability of the industry [and] was right in his isolation of
the source of union coercive power’. He explained how Cole’s recommendations,
if implemented, would greatly shift the balance of bargaining power away from
unions and towards employers by declaring that ‘the new order envisaged by Cole
will better enable employers to resist illegitimate tactics used to force issues such
as the implementation of the 36-hour week’. Commenting on the building and
construction industry-specific legislation recommended by Cole, the MBA could
not have been more supportive of the proposals, as Harnisch declared
[T]he statutory authority, provisionally called the Australian Building and
Construction Commission (ABCC), will have wide powers to help thwart those who
want to break the law. This is exactly the outcome that the MBA argued for in its
submission to the Cole inquiry.20
Harnisch went on to warn that the months ahead would require intense
political lobbying by employer groups for the Cole reforms to be passed by the
Senate. With 2003 lying in the middle of the electoral cycle, employer groups
like the MBA were well aware that if important legislative reforms were to be
enacted, then by early 2004 the window of opportunity would in all likelihood
be almost closed.
Some months later the MBA was calling for legislation to go beyond the
Cole recommendations in order to prevent pattern bargaining and to expand the
scope of the secret ballot requirements for taking industrial action. At a Workforce
conference in September, Harnisch argued that the ABCC should be able to ‘stand
in the shoes of the affected party’, by itself initiating injunction proceedings against
unions engaging in pattern bargaining.21 He also argued workplaces with fewer
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than 10 employees should still be required to hold secret ballots before initiating
protected industrial action. Revealing the MBA’s preference for allowing
employers to unilaterally determine wages and conditions, Harnisch also called
for the removal of the requirement in Recommendation 8 of the Cole report,
that enterprise bargaining take place: ‘the idea of freedom of choice also meant
that employers and employees should be free to choose not to bargain’.22
The attitude of employers to the Cole Commission’s recommendations made
it clear that employers were not interested in deregulation, which had been the
rhetoric of their reform agenda when the Howard government came to office.
Deregulation is supported by employers in areas of the economy where organised
labour is weak and the balance of power greatly favours capital, but where union
organisation is strong, powerful doses of regulation and enforcement are required.
Hence, the support for the industry-specific legislation contained in the Building
and Construction Industry Improvement (BCII) Bill. So much for employer opposition to ‘third party interference’. Discussing the likely effect the Bill could
have on the CFMEU, Anthony Forsyth, an ANU law lecturer, stated that
the proposed restrictions in the Bill and ensuing regulations on protected
industrial relations would ‘almost completely close the window for lawful
industrial action.23
The AiG, while supportive of the Bill overall, was concerned that the BCII
Bill’s definition of the construction industry was too broad, which could make it
easier for unions to extend construction terms and conditions of employment to
other industries. Furthermore, it could also open up opportunities for construction
unions, chiefly the CFMEU, to extend their coverage to other industries. The
AiG’s position was at odds with the Australian Chamber of Commerce and
Industry (ACCI) which supported a broader definition of the industry as a means
of constraining unions in as broad as possible area—with the exception of the
housing sector, which is virtually non-unionised anyway.
When the government finally introduced its BCII Bill, the AiG’s concerns had
largely been incorporated. Whether the Bill eventually becomes enacted, will
depend on the Bill negotiating a hostile Senate in 2004. At the time of writing,
the Labor Party’s electoral prospects had improved significantly following the
promotion to leader of Mark Latham, thus reducing the likelihood of the Howard
Government using possible Senate blocking—which, in any case, have to
happen twice—of the BCII Bill as a trigger for a double dissolution of the
Commonwealth Parliament.
GROCON
The year 2003 began with the unravelling of Grocon’s bold attempt to de-unionise
it’s Victorian building and construction operations. Having announced its intention to offer a non-union s. 170LK agreement to its workforce in November 2002,
the company was forced to back away from its aggressive agenda following the
workforce’s overwhelming rejection, by secret ballot, of the company’s proposal
on 5 December.
Prior to this bold attempt to bypass the unions, Grocon, a Grollo family
company based primarily in Victoria, was generally considered to be a moderate
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employer, and rather unique among construction companies in that it directly
employed a large workforce of around 650, rather than relying on subcontractors.
Much like CRA, 10 years earlier, which had been considered a ‘union friendly’
company, this about-face, seemed to catch the unions unawares.
With Bruno Grollo, the patriarch and former head of the family company, now
in retirement, his son and Grocon Director, Daniel Grollo, was apparently keen
to make a statement about his approach to industrial relations in the construction
industry. The more hardline industrial relations position adopted by the company
also coincided with it adopting the law firm Freehills and senior counsel Ian
Douglas, to run its legal strategy. Earlier in 2002, the firm also recruited former
BLF official and CFMEU (Federated Engine Drivers and Fireman’s Association
[FEDFA] Division) Victorian Branch Secretary, John van Camp as its industrial
relations director.
Daniel Grollo signalled a more adversarial approach to company–union
relations when he told a property council lunch in Melbourne that
Grocon had let poor work practices become entrenched in the company’s operations,
but now the game is up. Grocon is now firmly focussed on rooting out the work
practices we believe are unacceptable.24
The deteriorating relationship between Grocon and the unions—primarily the
CFMEU—seems to have gathered momentum following Grocon’s submission
to the Cole Royal Commission into the building and construction industry,
which was quite critical of the unions and alleged that union officials had used
intimidation against Grocon managers.
At any rate, the failure of the company to secure worker support for its nonunion agreement meant that the year 2003 began with Grocon-union relations
in limbo. Aware now, if not before, that ‘on the ground’ the union was firmly
entrenched amongst the workforce, Grocon proceeded to pursue a legalistic route
to achieve its desired changes to workplace conditions and work practices. Trying
to achieve through the courts and the Commission what it couldn’t achieve ‘on
the job’, Grocon sought to get protected industrial action declared unlawful via
the issuing of a s. 166A certificate.25
On 21 January, Daniel Grollo and CFMEU Victorian Branch Secretary, Martin
Kingham, issued a joint statement declaring that the company had agreed to
adjourn its legal action against the unions and its officials, while the union had
suspended planned industrial action. However, this apparent truce was put in
doubt in early February when all major construction sites in Melbourne were
affected by industrial action as building workers rallied in support of CFMEU
State Secretary, Martin Kingham, when he appeared before the Magistrates Court
over his refusal to hand over summoned union documents to the Cole Royal
Commission. The rally closed Grocon sites, which the company claimed was a
breach of the peace pact, as the union had promised not to take further industrial
action.
The company applied for a s. 166A certificate against the union as well as
pursuing a s. 170MW bid to end the bargaining period. The union then responded
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by re-imposing its previous work bans and planned industrial action on all of
Grocon’s sites. However, this sudden show of force by both parties convinced
both the company and union to strike a peace deal later that same day.26
Throughout the dispute, the federal Minister for Workplace Relations, Tony
Abbott, applauded Grocon’s attempt to bypass the unions, in much the same
way that former Minister Peter Reith did during the epic waterfront dispute in
1998. At one stage however, the peace deal was jeopardised by the intervention
of Abbott, who appealed against a decision of the Commission to refuse
certification of the one non-union deal which Grocon had reached with two of
its management employees. Ultimately, the Commission rejected Minister
Abbott’s appeal.27
The Commission found that Grocon had put its s. 170LK offer to employees
under five different company names, but that employees were not aware that
their colleagues’ designated employers were different, and that they were
voting on different deals. The strategy of Grocon management, like Patricks
in 1998, was based on legalistic intrigue, rather than a serious attempt to
win over the ‘hearts and minds’ of its workforce. This is why the de-unionising
attempt failed.
In September, renewed industrial unrest broke out at Grocon’s largest project,
the MCG development site, over the terms of a site agreement. By 17 November
however—almost 12 months since Grocon had attempted to by-pass the
unions—an agreement was certified by the Commission, effectively ending all
outstanding disputes between the company and the unions.28 For the time
being at least, Grocon seems to have withdrawn from the Howard Government’s
‘coalition of the willing’ in its war on [union] terror, and seems to be more
concerned with keeping its major projects on schedule.
HAMERSLEY IRON
Some 10 years after Rio Tinto (then CRA) executed a stunning de-unionisation
strategy at its Hamersley Iron mines in the remote Pilbara region of Western
Australia, foreshadowing the de-unionisation of their other metalliferous and
aluminium smelting operations, 2003 witnessed a number of twists in the
continuing efforts of unions to regain a foothold in this once 100 per cent
unionised region.
Rio Tinto management have long demonstrated an ability to introduce and
maintain predominantly non-unionised workplaces, whether operating under the
former Labor Government’s Industrial Relations Reform Act 1993 using Enterprise
Flexibility Agreements, the Workplace Relations Act using Australian Workplace
Agreements (AWAs), or the former Western Australian Government’s individual
Workplace Agreements.
One of the stand-out features of Rio Tinto’s management of industrial relations,
has for many years, been its ability to operate quite strategically, planning and
preparing well into the future. Fearing that the Gallop Labor Government’s
reforms to industrial laws would make it increasingly difficult to keep unions out
of its workplaces, in 2002 Rio Tinto sought to shift all its Western Australian
workforces onto non-union s. 170LK agreements. In the first major rebuff for a
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decade, its largely non-union workforces at Hamersley iron, Dampier Salt and
Argyle Diamonds overwhelmingly voted down the company’s proposal.29
The union movement interpreted these results as evidence of a need for
renewed union organisation at Hamersley. However, in an attempt to avoid the
debilitating demarcation conflicts between the Australian Workers Union
(AWU) and the CFMEU, as well as to respond to the apparent local community
wishes for a more grassroots form of unionism, the ACTU launched a unique
organising campaign, based around a new union body, the Pilbara Mineworkers
Union (PMU).30
Rio Tinto management at Hamersley, having had their s. 170 LK proposals
rejected, decided to offer AWAs to its workforce instead, as a means of shifting
from the state jurisdiction to the federal sphere, under the WR Act. By early
2003, all but around 10 per cent of Hamersley’s 2000-odd workforce had signed
AWAs. However, as the new Western Australian industrial relations regime
provides for arbitrated enterprise orders when bargaining negotiations become
deadlocked, the union’s saw this as an opportunity to improve the pay and
conditions of the ten per cent of Hamersley’s workforce who had refused to
sign the company’s AWAs.
While unions such as the CFMEU, AMWU and Communications Electrical
and Plumbing Union (CEPU) were preparing to launch such a claim, Hamersley
management were negotiating a consent Federal award with the AWU.31
Management had once again out-manoeuvred the unions. Under a Federal
consent award, the workers would be entitled to a safety net, largely reflecting
the work practices brought in under the Hamersley AWAs. Importantly for
management however, it maintains the coverage rights for the relatively
compliant AWU, while freezing out the more militant CFMEU.
The proposed consent Mining Industry Rio Tinto Iron Ore Award 2003
provides for non-AWA workers, at least initially, to move to the same pay
and conditions as those on AWAs. The company also signed a memorandum of
understanding (MOU) with the AWU, to apply at both Hamersley and at its
nearby Robe River site. The MOU outlines organising rights and the
union’s ability to represent members in the company’s fair treatment grievance
handling process and streamlines induction for AWU officials visiting Rio
Tinto sites.
The state unions frozen out of the Rio Tinto-AWU deal chose to
continue with their pursuit of state-based orders, and at the time of writing
were challenging the Commissions jurisdiction to register the federal consent
award.
While the developments were significant, in that Rio Tinto management had
agreed to a new award recognising union coverage, they had also successfully
driven a wedge between the competing unions, guaranteeing that inter-union
squabbles would continue for some time. It had also pulled the rug from under
the fledgling community-based PMU, just as it was showing signs of gathering
genuine rank-and-file support.32 It is likely that Rio Tinto management will point
to the union infighting as evidence that the unions are more concerned with
their selfish turf wars than they are with the working conditions and interests of
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workers in the Pilbara. Only time will tell if such a judgement is proven to be
well founded.
BLAIR ATHOL
Meanwhile, at other Rio Tinto operations on the East Coast of Australia, industrial relations continued to take alternative courses. First, in 2003 the CFMEU
and Rio Tinto successfully negotiated their second three-year certified agreement
covering their once strife-ridden Hunter Valley mine.33
On another front however, hostilities continued between Rio Tinto’s subsidiary,
Pacific Coal, and the CFMEU over the fate of 16 former Blair Athol mineworkers,
sacked in 1998, at the peak of the battle between the company and the CFMEU
in the coal industry. The Blair Athol mine in central Queensland was but one of
a number of locations of intense struggle, as the company attempted to implement
its de-unionising agenda throughout its coal operations in the late 1990s.34
Although in 2001 the Commission found that the company had conspired to
make redundant a blacklist of union activists, and ordered their reinstatement,
this decision was eventually overturned on appeal to the full bench of the
Commission. In December 2002, though agreeing that a blacklist existed and
that the 16 workers were unfairly dismissed, a full bench majority quashed the
reinstatement order and awarded the sacked workers no compensation.35 The
Commission’s peculiar rationale was that regardless of procedural fairness, the
company had established a business case for cutting staff numbers.
However, in response to another application from the CFMEU, in July 2003
the Commission ruled that the 16 workers be given preference of employment
at the company’s new Hail Creek mine nearby.36 The new Hail Creek mine,
owned by Queensland Coal, a subsidiary of Rio Tinto, began recruiting workers
in September 2002, but the 16 former Blair Athol workers all failed to get past
the initial screening phase. The full bench found that the recruitment process at
Hail Creek operated unfairly towards them. In fact, the bench found that the
company’s own witnesses acknowledged that the former Blair Athol workers were
treated differently to other job applicants.
This finding is consistent with the evidence uncovered at other Rio Tinto coal
mines, in particular at Mount Thorley and the Hunter Valley No. 1 Mine, where
management was found by the Commission to have discriminated against union
activists in selecting workers for redundancy.37 As has generally been the case in
the long running battle between the CFMEU and Rio Tinto in the coal industry,
the company chose not to comply with the Commission’s decision but to appeal
to the Federal Court for a stay of the Commission’s order. On 18 December 2003,
a full bench of the Federal Court rejected the company’s application for a stay
of the Commission’s order that the 16 workers be given preference of employment at the Hail Creek mine. However, this was not the end of the dispute, for
a federal Court hearing was scheduled for February 2004 to hear the company’s
application to overturn the Commission’s order.
In this case, the employer’s strategy seems to have been to make it as drawnout and expensive as possible for the sacked workers to regain employment with
Rio Tinto. The message this sends to its current workforce is that the unions are
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not capable of achieving realisable gains for their members, and that even when
they do win grievance cases, they come at very significant costs. It also demonstrates that although certified agreements between Rio Tinto and the CFMEU
now operate in the coal industry, these outcomes can only be considered truces
in an ongoing war, which seems to have a long way to go before a clear victor is
declared.
GEELONG WOOL COMBING
The year 2003 also witnessed a number of lengthy lockouts, as some manufacturing employers—such as the glass manufacturer ACI in Box Hill and the
car components manufacturer FMP in Ballarat—sought to flex their own
muscles during enterprise bargaining negotiations. However, one case in
particular stands out as worthy of some analysis. On 28 April 2003, around
100 textile workers at the Geelong Wool Combing (GWC) factory found
themselves locked out of their workplace on full pay, ahead of a protected
lockout commencing five days later. Leigh Schmitt, managing director of
BWK Holdings, GWC’s parent company, stated that the key issue in the dispute
with the Textile Clothing and Footwear Union of Australia (TCFUA) was the
company’s proposal to shift from a seven-day, 24-hour operation (three shifts a
day), to a five-day, 24-hour operation as needed.38 The company sought to make
this change without having to maintain the penalties built into the rates for
working weekends and public holidays, but this was opposed by the union.
Against a background of drought-induced high wool prices and excess
processing capacity worldwide, the company was clearly facing economic
difficulties, and so decided to pursue a radical cost reduction strategy. In what
was surely one of the longest lockouts yet seen in Australia, GWC management
kept the gates closed for five months in an effort to force its workforce to accept
the reduced pay package.
The resilience of the workforce and their union, the TCFUA, finally convinced
management that its employees were not going to accept the reduced wages, and
so in October 2003, as they had promised, they closed the plant. The company
then tried to avoid paying workers their redundancy payments for the period that
they were locked out by management39 however, this was overruled by the
Commission, which declared that the workers’ continuity of employment had
not been effected by the lockout.40
The end result of this dispute was that the workers, supported by their union,
successfully withstood the company’s lockout, but in the process they all lost
their jobs because of company closure. In a region like Geelong, with limited
employment opportunities, other employers are now armed with ‘evidence’ that
militant unionism only leads to job losses. No doubt, they will be reminding
workers of the closure of this plant the next time a major industrial dispute
breaks out in the greater Geelong region.
CONCLUSION
Looking back on industrial relations events in 2003, focussing on the policies
and actions of major employers and their associations, the year might best be
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described as one of testing and prodding. In particular, the responses of employers
and their associations to the unions’ Campaign 2003 was instructive for the efforts
which some major employers went to test, to the ‘nth’ degree, the powers of the
Commission to prevent and/or terminate industrial action by workers. Even the
employers, seemed to be genuinely surprised—and obviously pleased—at the way
the Commission ‘discovered’ new ways to constrain union activity.
A decade of enterprise bargaining has taught employers valuable lessons in
negotiation tactics, which they are beginning to demonstrate, by their proactive
positions taken during last year’s bargaining rounds. In particular, there is
some evidence that more employers are having successes in getting non-union
collective s. 170LK agreements registered.
Employers continue to be actively supportive of the Howard Government’s
industrial relations reform agenda, and will be hoping that the tough new enforcement and policing measures planned for the building industry manage to
negotiate their way through the Senate in 2004. No doubt, with a federal
election due later this year, and with growing uncertainty surrounding the
Howard Government’s hold on office, employer organisations may be expected
to commence planning for the possibility of a changed political and regulatory
environment. For the time being however, it’s steady as she goes.
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