With the devastation of the 2007 election defeat having receded and the appetite for a real contest later this year intensifying, it seems the coalition has come to accept that while industrial relations will not be the principal front on which the election will be fought, it is neither possible nor credible to avoid the subject. On the contrary, its prospects demand a posture that exhibits confidence without arrogance and balance without timidity.
One area where the coalition can press forward in a way which highlights one of the emerging failures of the new industrial relations system the government has introduced is, surprisingly enough, flexibility in agreement-making between employers and employees.
Throughout much of the last government's term, the then opposition was very effective at seizing on Australian workplace agreements (AWAs), in particular, to depict the Howard government's workplace relations system as a pernicious, Dickensian throw-back.
So it's hard at first to think that individual agreement making might afford the opposition an opportunity to demonstrate real initiative without courting a fierce counterattack from the government that it is attempting to restore the previous system.
There is a way the opposition can craft a policy on more flexible agreement-making that addresses a major problem of rigidity facing businesses, large and small alike, while protecting itself from attacks.
The first point to note is that the Rudd government bas a system of individual statutory contracts, however much it might characterise these agreements otherwise. They can be made under either modern awards or enterprise agreements.
Take modem awards. Every modem award must contain a flexibility term allowing the employer and an employee, if they both wish, to agree to terms varying the effect of the modem award if it is done to meet their genuine needs.
The Fair Work Act makes it clear that these individual contracts are taken to be terms of the modem award likewise, all enterprise agreements must contain flexibility terms. If they don't, they are taken to include a model flexibility clause.
As with flexibility agreements made under modem awards, a flexibility arrangement made under an enterprise agreement is taken to be a term of the enterprise agreement. Here's the main technical and political point: individual flexibility agreements under the government's system require no third party review or approval.
All flexibility agreements, whether made under a modern award or enterprise agreement, must provide that the employee will be better off overall, but that's of little or no relevance unless either parry initiates a dispute about whether the flexibility agreement satisfies this condition or the Office of the Fair Work Ombudsman inspects the agreement of its own volition.
For business, in particular, the scope of individual flexibility arrangements under the government's system depends on what the relevant modem award or enterprise agreement permits. In practice, this means that the range of matters over which employees and their employers can agree upon will be limited to the matters that Fair Work Australia has prescribed in the modern award, or which the employer and unions involved in bargaining have agreed to prescribe in an enterprise agreement
So while the Fair Work Act provides that individual flexibility agreements under modem awards and enterprise agreements cannot be expressed to require, in effect, union approval, this provision is quite disingenuous. The flexibility clauses in modern awards and enterprise agreements have already been severely curtailed before they are available to be utilised directly by employees and their employers.
The evidence for this? The standard modern award flexibility clause limits the range of matters over which employees and their employers can directly agree upon to just live matters. Under enterprise agreements, the range is usually limited to the same matters unless the parties have agreed to expand or contract those matters.
For the opposition, this means that in formulating a more flexible system of agreement-making it can look at a policy option which primarily does two things.
First, it unhinges the ability of individual employees and their employers to enter into flexibility arrangements from the very limited range of matters that modern awards and enterprise agreements prescribe while retaining the better off overall test.
Secondly, and in order to ensure that protections are properly in place, the coalition should consider third parry review before individual flexibility agreements can operate, unlike now. Ultimately, the coalition can give business the greater flexibility it needs while giving employees protections they deserve.
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