Early this month the Business Council of Australia released an analysis of the federal ALP's industrial-relations policy that concluded adverse outcomes for business and the economy. The political responses to the Access Economics report by the federal government and the ALP has suddenly thrust Labor's IR approaches into central consideration, for business at least.
The Shadow Minister for Workplace Relations, Craig Emerson, has accused ALP critics of falsely scaremongering asserting Labor's IR policy closely resembles that of New South Wales and Queensland and involves a light touch on regulation. An understanding of NSW and Queensland's IR regimes should then assist business to assess ALP policy.
The key point about NSW is that industrial IR introduced by the Carr government does not regulate relationships between employers and employees. The legislative scope embraces "work in an industry". This simple definitional shift away from normal employment regulation to regulation of "work" has in fact turned the NSW Industrial Relations Commission into a powerful regulator of commercial transactions. The implications of this comparatively recent and radical shift are now only being understood as the NSW Commission tests the parameters of its new powers.
For example, in unfair contract cases the commission now regularly seeks to control franchise and other commercial agreements. In 2002, the Commission decided to allow the insertion into NSW awards of compulsory employer remittances of union dues. In 2003, it approved compulsory union agent fees on non-union employees and endorsed enterprise agreements, accepting that the parties were agreeing to breach the Trade Practices Act.
This last matter raised the concern of the Australian Competition and Consumer Commission, which contemplated intervening.
The Supreme Court of Appeal of NSW is unhappy. A surprise twist in the NSW legislation is that appeals against decisions of the Full Commission are not allowed. In attempting to overcome this denial of natural justice in NSW, parties in one unfair contract application (Mitchforce v Starkey) went to the Supreme Court. In deciding to refer the matter back to the commission, the Supreme Court stated that it was "troubled by the continued intrusion of the NSW IR Commission into commercial contracts". The Court also expressed "grave doubts" as to the constitutional validity of denying people their right to appeal to the High Court of Australia.
Under Premier Beattie, Queensland has traveled down a similar path. Although the much newer legislation remains focused on the employment relationship, Queensland Labor introduced similar NSW unfair contracts provisions but went one radical step further -- introducing a significant first by empowering the state's IR Commission to declare corporations to be employees. (This has led the Queensland commission to express concern at having to declare something "to be what it is not"). One such application, now running for two years, attempts to change the commercial contracts of 13 transport companies. It's costing the small firms large sums of money to protect their commercial rights.
What's in evidence in NSW and Queensland is something new and probably summarised by the title of my recent report. The Strange Return of the Industrial Relations Club, claims that in the last five years industrial relations IR commissions, particularly in NSW and Queensland, have grasped new IR legislation to assert an expanded role as new super regulators. But because the process is unfamiliar and is being applied selectively, company by company and industry by industry, analysis of the economic implications is only just emerging.
This may help explain why the key industry associations -- the Business Council of Australia, Australian Chamber of Commerce and Industry and Australian Mines and Metals Association -- have been vocal in expressing opposition to these new models of IR re-regulation.
What Queensland and NSW perhaps show is that business concerns may include, but also expand beyond, the traditional battle over labour de-regulation versus re-regulation.
There is an additional trend in state IR law creating reach into commercial regulation thus destabilising core business structures, creating unknown and unpredictable discord between competition and labour regulators, and concern over economic outcomes.
ADVERTISEMENT
No comments:
Post a Comment