Compulsary Bargaining in Australia

“According to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case-law of the administrative labour authority” (ILO, Article 4 of Convention No. 98)

In the Past century Australia has shifted away from conciliation and arbitration, to a more individualistic approach to employment decision making. The Howard Governments Work Choices Amendment has sped this process up and in 2007 the majority of employees were on non union, individual agreements or AWAs. Since the Labor Government has been in power, they strived to turn back not only Work choices, but 13 years of deregulation by banning AWAs after a five year transition period, and the introduction of �good faith compulsory bargaining’.(NFIA,2006) These compulsory laws go against basic human rights conventions which 156 countries have ratified and Australia has not, One must ponder why? This paper will firstly discuss the changes in the IR laws regarding collective agreements, secondly it will discuss the positives of a collective agreement to the employer, and lastly will discuss how compulsory agreement making is a step backward. One will come to the conclusion that no parties should be coerced into making an agreement, as this will hinder the future relationship of the parties, and that collective bargaining should be a choice not a regulation.

There are 3 types of agreements which employers have been able to choose based on their needs and circumstances, these consist of individual agreements (AWAs), Collective agreements between employers and employees, and union collective agreements. An employee collective agreement is a written agreement, made between an employer and the employees, which sets out terms and conditions of employment. (Australian Government Workplace Authority 2008) Collective bargaining is supported by employers where three conditions exist;- it is freely entered into, reflects the real interests of the parties, and it is not the exclusive form of employer / employee engagement over wages and working conditions.

The ALPs plan breach these principles and collective bargaining will override every other form of bargaining, including AWAs (Nuttall,P, 2007). Until recently these agreements were made at the employers’ discretion, new legislation has it that in workplaces where more than 50 per cent of employees vote in favour of a collective agreement, a collective agreement would be required to be negotiated and individual agreements would be prohibited. An employer will not be able to refuse to bargain in good faith where a majority of employees wish to bargain collectively. If there is a disagreement about what employees want, FairWork Australia, the new industrial umpire will decide whether the employer must agree to bargain. This new legislation ignores the need for �mutual consent”, which is the principle that underpins the making of agreements in employment matters. It no longer allows employment matters to be between the parties involved, and where government interference was once minimal, regulation has begun to take over these employment relationships. Is this for the better? This will be discussed in the next part of the Paper.

Australian evidence on popular ideology is mixed but overall suggests that, although unionism is down, individualism is not inherently favoured over collectivism and the shift has been away from, not towards individualism. (National Fire Industry Association, 2006) Therefore it would make sense for collective agreements to be closely regulated to ensure they are used properly and are what the employees want. Collective agreements have many benefits to the employer if used properly and aligned and �fit’ with the Human Resource Strategies being pursued, they can be used as a �soft’ HR strategy, fostering a direct relationship through the agreement facilitating, and implementing workplace change. Collective agreements can be a mechanism to enhance managerial flexibility and discretion and lower labour costs by reconfiguring patterns of hours and payment systems. (Briggs & Cooper, 2006) They can reduce overall costs, due to administrative ease, there’s one document that applies to all employees, and not hundreds of complex individual agreements,(Rights At work, Australian Government, 2007), although there are many benefits of a collective agreement to the employer, this is only achieved if it fits with the organisations strategy, if an agreement is one where one party is bound, then true organizational bargaining has not taken place, and some benefits