Industrial Relations Society of Australia

National Conference

Opening Address

Justice Giudice

President of the Australian Industrial Relations Commission

Canberra, 30 March 2007

First may I thank the Industrial Relations Society of Australia for inviting me to speak at the 2007 National Convention, which has as its theme “Happy Birthday Workchoices. As it happens, the organising committee would be hard put to select a theme with greater topical interest. Work Choices and its supposed effects have occupied much time in the media, Parliament and elsewhere recently, but particularly in the last week.

Whichever way one looks at the legislation passed in 2005 and known as Work Choices, it cannot be denied that it brought about changes in the regulation of workplace relations which are fundamental in nature. The legislation has created a national system based predominantly on corporations and their employees, and made substantial changes in relation to minimum wages and other conditions of employment, dispute resolution, the content and form of awards and agreements, workplace bargaining and industrial action and remedies related to unfair dismissal.

A new body has been established to fix minimum wages by a process of consultation and determination rather than by arbitration. The award system has ceased to be the safety net for bargaining and the safety net now has only five components – minimum rates set by the Australian Fair Pay Commission and four legislated minimum conditions as to leave and hours of work. No new awards will be made and existing awards will be reduced in content and number. Applications for a remedy based on alleged unfair dismissal are only available to persons whose former employer had more than 100 employees provided they were not dismissed for genuine operational reasons. There are a range of other changes as well – the establishment of an administrative process for the approval of collective and individual workplace agreements, abolition of the AIRC’s remaining powers of compulsory intervention in industrial disputes, subject to some exceptions, and the introduction of pre-strike ballots.

Twelve months on there is a wide range of firmly held views about the effects of Work Choices. You will hear many such views over the next two days. To give some context for the Conference I thought it might be useful to provide some information about the effects of Work Choices upon the cases coming before the Commission and to make some general observations about contemporary workplace relations.

This paper incorporates some tables which set out details of lodgments in the Commission’s main caseload categories over the last 12 months compared with the preceding 12 months.

The first thing to note is that applications seeking assistance in resolving disputes, and applications relating to bargaining and industrial action are at very low levels. Applications for assistance in dispute resolution are down by nearly half. The number of bargaining periods notified is down by 75 per cent. Applications to stop or prevent industrial action are also down very significantly. These data are not unexpected and are consistent with official statistics on industrial disputation. There are a number of other factors at work. In the 12 months prior to the commencement of Work Choices more than 8,000 collective agreement applications were made. These included more than 2,000 applications in the last few weeks of the old system. Based on these figures it is likely that many agreements are still current. When one takes into account that agreements now tend to have a longer life, it is likely that the bargaining cycle has been realigned in a number of cases.

The change in the unfair termination provisions has led to a 20 per cent reduction in the aggregate number of applications. The experience differs markedly from State to State. This is because there are two contrary influences operating – on one hand the extension of the federal jurisdiction to employees of constitutional corporations and on the other the introduction of greater limitations on access such as the less than 100 employees exclusion and the genuine operational reasons exclusion. In Victoria, where there was no State industrial tribunal prior to Work Choices, the effect of the limitations on access are more clearly seen. There were around 2,000 applications in the last 12 months, compared with 3,700 applications in the previous 12. The experience is similar in the Territories. In the other States the number of applications is on the increase, as one would expect, because to a very large extent the national system is displacing the termination of employment jurisdiction of State industrial commissions.

The number of lodgments overall is down very significantly. This is mainly due to the reduction in dispute related matters and the transfer of the agreement approval process to the Office of the Employment Advocate.

There are now many bodies making up the institutional infrastructure of workplace relations – for example, the Australian Fair Pay Commission, the Office of the Employment Advocate, the Australian Building and Construction Commission and the Department of Employment and Workplace Relations including within that the Office of Workplace Services. The Human Rights and Equal Opportunity Commission has an important role as do the Courts. And finally, the Parliament itself has taken an influential role through the prescription of minimum conditions which make up four of the five components of the Australian Fair Pay and Conditions Standard and the close regulation of the content of awards and the bargaining process.

The program for the Conference reflects this organisational diversity and you will have the opportunity to hear first hand about the most recent developments and plans.

The important goals of an industrial relations system, from a public policy perspective, include such things as improving productivity, full employment and increasing real incomes. There would be little disagreement about the importance of these goals. At another level there are a number of very significant ongoing issues. These include, for example, the level and composition of the safety net of wages and conditions for employees, the relationship between the employment safety net and the social security safety net, the role of the award system, the role of trade unions, the extent to which workplace bargaining should be regulated, both in subject matter and process, and the relationship between individual and collective bargaining. In the area of individual rights there are important ongoing questions around the need to reconcile employment and productivity imperatives with the relevant employment protection standards and the elimination of discrimination in all its forms. All of these matters must be seen in their national, and international, economic and social contexts. Conferences such as this provide an opportunity to think about some of these broader issues, free of the pressures of our daily work, and to develop a better understanding of opposing points of view – one of the objectives of the Industrial Relations Societies.

The Industrial Relations Society of Australia is to be congratulated for putting together such an interesting program and attracting such a good attendance. I trust you all have an interesting and enjoyable time.

AIRC Lodgments

Table 1: Main caseload categories

 

27 March 2005

to

26 March 2006

27 March 2006

to

26 March 2007

Industrial disputes/Applications for dispute resolution assistance

2,420

1,344

Bargaining periods notified

6,917

1,780

Protected action ballot applications

No equivalent

239

Protected action ballot applications granted

No equivalent

157

Applications to stop or prevent industrial action

389

130

Termination of employment applications

   

   Unfair

 

Not available

2,208

   Unlawful

885

   Unfair and unlawful

1,905

   Total

6,127

4,998

Applications to vary awards

2,055

1,134

Agreement (certification, extension, variation, termination and determination of designated award)

10,567

229

Table 2: Total lodgments

 

27 March 2005

to

26 March 2006

27 March 2006

to

26 March 2007

Total lodgments

29,246

10,138

Table 3: Termination of employment matters – place of lodgment

 

27 March 2005

to

26 March 2006

27 March 2006

to

26 March 2007

Adelaide

132

280

Brisbane

311

699

Canberra

160

78

Darwin

162

46

Hobart

96

70

Melbourne

3,688

1,994

Perth

287

381

Sydney

1,291

1,450

Total

6,127

4,998