Interim Report

1. Interim Report ACTU Executive Delegation to US, Canada, UK and New Zealand

2. Composition of delegation ACTU Greg Combet Cath Bowtell Affiliates Joe De Bruyn Doug Cameron Susan Hopgood Jeff Lawrence Bill Shorten David Carey John Sutton Linda White Mark Lennon

3. Context: Defect in Australian laws 1993: Shift in emphasis between bargaining and arbitration, weak “good faith” provisions, and limited industrial action. 1996: Reduced role of arbitration, reduced access to industrial action, no good faith provisions increased role for bargaining; 2006: All but abolished arbitration, all but abolished lawful industrial action. No institutional means to encourage employer to engage in bargaining and reach agreement.

4. Importance of Collective Bargaining • Means to address power imbalance between workers and employers including improving wages and conditions • Australia’s laws breach fundamental ,internationally recognised standards; • Freedom of Association and Right to Bargain Collectively sit alongside abolition of child labour, elimination of forced labour and elimination of discrimination as the four core labour standards; • Political heritage • North America Democratic values: freedom to associate and act in concert to protect interests in the workplace complements democratic rights as citizen in political economy. • EU: Social partnership

5. Economic/labour market challenges • Structural changes to economy; • Sharper competition, trade exposure; • Decline in manufacturing, growth of services sector • Reliance on resources sector; • Ageing population, skills shortages, pressure on hours, pressure on families; feminisation of labour force; • Smaller enterprises; • Growth of non-standard employment.

6. Terms of reference • Examine systems in the four countries; Should industrial legislation policy include an enforceable right to collective bargaining? • If yes, model or models that would be suitable in the Australian context, taking into account the need to: • promote effective and democratic unions; • assist unions to build their capacity within the workplace • Note that other issues related to IR policy are for Congress

7. Programme • Toronto 24, 25 April • Ottawa 25, 26 April • Washington 27, 28 April • London 2, 3 & 5 May • Brussels 4 May • Wellington 21 June

8. People seen Unions/peak bodies:OFL, CLC, AFLCIO, CTW, TUC, ETUC, ICFTU, NZCTU Union lawyers: Internal and external Union organisers: Academics: Yates, Fudge, Vosko (Canada) Compa (US)Ewing(UK) Labour supporters: (Ontario Health Coalition, ARAW) Bureaucrats: (DTI UK, Dept. Labour NZ) Tribunals: (Federal Mediation and Conciliation Service, OLRB, former NLRB (US), CAC, ACAS) Politicians: (NDP Canada, Labour NZ) Research: Commissioned AIER/Monash plus desk research

9. Report will address….

10. 1. The context for bargaining • Looked at bargaining in 5 settings; • The economic and labour market issues in each US, Canada, UK, NZ, and EU; • Trends in union membership, coverage of, and quality of collective bargaining; • The constitutional, legislative and political background to the collective bargaining laws; • The foundations of the bargaining systems; to whom the laws apply, how they relate to other labour legislation; and • An overview of the institutional support for bargaining in each jurisdiction.

11. 2. The bargaining systems The role of bargaining and of unions: • in each system including the risks and opportunities associated with linking collective bargaining with union recognition, and with union membership (winner take all) Initiating bargaining: • who can initiate bargaining? • the strengths and weaknesses of a representation threshold, how is representativeness tested? • the strengths and weaknesses of a ballot, card checks and membership checks for determining whether a union is representative.

12. Three models North American: Recognition • Majority support confers exclusive right to bargain, and triggers good faith obligation • UK: hybrid • Recognition not essential, but majority support can trigger compulsory bargaining procedure, no good faith obligation • NZ:good faith • Good faith bargaining towards collective agreement with registered unions on behalf of its members

13. Canada vs US • Wherever employers can interfere in employee free choice they do Differences between laws that had impact • card check/ no ballot and clandestine organising, ballots- time between calling ballot and holding • Instances of unfair labour practices-dismissal and victimisation pre recognition, one on one meetings, (all pre recognition) and surface bargaining, (post recognition) • Remedies and expedited hearings and interim reinstatement, • Access to first contract arbitration

14. North America Exclusive recognition has three related concepts; • Majority support precursor for collective bargaining, must bargain through union to exclusion of any other person or system (i.e. no individual bargaining) • Recognition as precursor to members right to representation (if fewer than 50% no right of single members to representation) • Recognition as means to determine union rights vis avis each other (no demarcations)

15. UK Majority support not needed for bargaining, but can trigger bargaining; • Design flaws; • small business exemption, • previous recognition of “tame cat” union is bar to recognition procedure, • capacity for employer to challenge bargaining unit (so far not abused); • ballots even in face of majority support • Single members have right to representation (some limitations in statutory rights) • Robust unfair labour practice and access and communications during ballot, but not during bargaining • No good faith obligation

16. NZ • Good faith obligation arises on making a claim by registered union; • good faith includes both mechanics of bargaining and respect for representatives; (no communications) • Only unions can make collective agreements; • Agreements do not cover non members- issue of equal pay and passing on • Multi employer bargaining available following ballot of members in each workplace ; • Arbitration in face of serious and sustained breach of good faith, but not used -hurdle v high

17. Collective bargaining in practice • Common claims: • No limits on common claims across more than one employer • Content of agreements: Minimum standards underpin bargaining; • Compulsory membership can be negotiated in USA and Canada (not R to W states), bargaining fees can be negotiated in NZ, and can be obtained by law in Canada (Rand formula) • Industrial action in support of claim: • Formalities: duration, registration

18. System design issues Administration of the system: • Composition, tenure, experience and procedural requirements of the tribunal have a significant impact on the effectiveness of the system; and • Level of detail in the laws needs to be sufficient to guard against “judicial activism” but not so complex as to create opportunities for technical defects. Guiding the judiciary: • Risks and Opportunities associated with supporting legislation with a Bill or Charter of Workers rights, or social, economic and political rights.

19. Building support • Alliances and community building; • Reinforcement through all areas of employment regulation.

20. A model for Australia

21. Principles • A decent, relevant and secure safety net of pay and employment conditions that is able to be adjusted to take account of community standards; • A system of collective bargaining, over and above the safety net which is built on the assumption that parties will bargain in good faith and uphold democratic values; • No statutory individual contracts; • An independent tribunal to maintain and improve the safety net, to oversee the bargaining system and to guarantee fair treatment in the workplace;

22. Principles • Rights of union membership and representation. Law should retain registration and eligibility rules, and legislation should uphold the role of unions in a free democratic society; • Protection from arbitrary or capricious decision-making, and avenues for workers to have their day to day grievances heard and determined; • Support for delegates in the workplace; • That rights and entitlements apply to all workers without discrimination, and that discourages artificial arrangements to exclude workers from the protections of the system;

23. The bargaining framework

24. Representation • Workers have rights to bargain (includes right to take action) and to be represented; • Union members have rights to representation in collective bargaining, and a general right to representation (grievances, discipline, enforcement etc); • Access to information in the workplace; • Unions retain registration and coverage.

25. Coverage of agreements • Collective agreements generally cover all employees in a business or related businesses; • System must guard against artificial expansion or fragmentation of workforce to be covered by bargaining process and agreement; • Unions can seek to bargain common outcomes within their area of coverage.

26. Coverage of agreements • Multi-employer agreements should be available by consent, or if certain criteria, • The right of the parties to determine the level at which they bargain; • The need of low paid workers where a lack of bargaining power at the enterprise level undermines their ability to effectively bargain collectively; • The community of interest of the employees; • The community of interest of the employers; • International Labor Organization principles and conventions; and/or • Any potential ,demonstrable, long-term negative impact on the viability of an enterprise.

27. Industry Consultative Councils for industry level consultation/negotiations eg OHS, skills and workforce development, R and D.

28. Parties • Unions or workers should have a right to initiate a claim to bargain (as do employers); • There must be parties to an negotiation and an agreement- no employer green fields agreements; • The parties to the agreement should be those parties who negotiate the agreement. Where a union has a member, it should be entitled to represent the member and be party to the agreement; (cont.)

29. Parties… • Disagreements about who is a party to the negotiations (including a single bargaining unit) on which workers would be covered by the agreement should be resolved by the AIRC, having regard to history at workplace, community of interests and need to guard against artificial fragmentation of workforce; • There can be collective agreements without a union, the two streams of union and non-union collective agreements should be simplified and streamlined.

30. Scheme of good faith bargaining • The Act should encourage good faith bargaining; • Voluntary bargaining, including industrial action, should be available without recourse to the Commission; • Where a party is not bargaining in good faith, the Commission should be able to make good faith orders; • Where a party opposes the making of a collective agreement, the views of the majority of workers to be covered by the agreement shall determine the issue; • Where bargaining has failed, and there is no reasonable prospect of reaching an agreement, or where good faith orders have been breached, the Commission should be able to arbitrate as a last resort to resolve the dispute.

31. Industrial action • Legally protected industrial action should be available during bargaining, without the need for a secret ballot; • As a matter of good union practice, unions should not take action unless it has been democratically endorsed; • Protected industrial action should not be undermined by use of external replacement labour; • The law should also protect meetings to prepare for bargaining, political protest, fair provisions re OHS, and allow workers to protest breach of statutory duties.

32. Good faith bargaining • In determining whether to make a good faith order the Commission should consider the parties’ conduct re negotiations including: • whether each party has agreed to meet at reasonable times and attended the agreed meetings; • whether a party has refused or failed to negotiate with one or more of the parties; • whether a party has refused or failed to negotiate with a union which is entitled to represent an employee(s); • whether each party has complied with agreed negotiating procedures; • whether a party has capriciously added or withdrawn items for negotiation

33. Good faith bargaining • whether each party has provided relevant information and documents; • whether a party has engaged in conduct designed to undermine the bargaining right of another party; • the views of the bargaining parties; • where it is a matter contested between the bargaining parties, the level of support amongst employees for the collective bargaining process. • Good faith does not require a bargaining party to agree on any matter for inclusion in an agreement or require a party to enter into, or prevent a party from entering into, an agreement. • Pursuit of common claims and outcomes is not a breach of good faith

34. Good faith orders Where there is a failure to bargain in good faith the Commission should have discretion, subject to legislative guidance, to grant orders to do, or stop doing certain things. Commission should to be able to make remedial orders to restore status quo to mitigate breach of good faith.

35. Good faith orders The orders might relate to: • Orderly bargaining (meetings schedules, exchange of information and proposals, adhering to undertakings and requiring parties to attend conciliation proceedings;time limits etc); • Respect for representatives (prohibiting action that undermining the collective bargaining process; or the the representative role of another party; or that disadvantages workers or discriminates on union membership).

36. Types of orders • Orders to meet, exchange documents, respond to proposals, adhere to commitments; • Refrain from actions undermining collective bargaining, or a negotiating party, or discriminating against a party for collectively bargaining or being a union member or being represented; amongst employees for the collective bargaining process • Ascertain level of workplace support , (in accordance with procedures outlined under “majority support”);

37. Types of orders (cont.) • the taking of, suspension, or deferral of industrial action (having regard to the right of parties to engage in protected industrial action and that the taking of such action is not of itself contrary to bargaining in good faith); and/or; • preservation of the status quo.

38. Majority support • Where orders sought, and where a party contests the level of workplace support for collective bargaining, the Commission should be required to make good faith orders designed to promote the making of an agreement where the Commission is satisfied there is majority workplace support. • Commission has discretion as to how is tests majority support. • E.g. Petitions, resolutions passed at workplace meetings, evidence from employees or their representatives, levels of union membership, results of employee ballot. • Commission can order ballot,only if the Commission is not satisfied by any of the foregoing measures, and only where the Commission has contradictory evidence before it.

39. Rules relating to Agreements • The matters to be included in an agreement should be for the parties to agree subject to agreements meeting a genuine “no disadvantage test”; • Agreement should be by valid majority; • Parties should be bound by agreements and not able to opt out. The system should guard against workforce or corporate restructuring to avoid agreements; • Agreements should continue for their term, and beyond until terminated by the parties or replaced by another agreement.

40. Last Resort Arbitration • Where bargaining fails and there is no real prospect of reaching agreement arbitration should be available as a last resort. • Workplace Determination would generally only occur: • where there is a risk to the safety, health or welfare of people affected by the bargaining dispute; or • where there is a risk of significant damage to the economy or an important part of it; or • it is otherwise in the public interest for the Commission to make a Workplace Determination.

41. Last resort arbitration • A breach of good faith bargaining orders could trigger the commencement of an arbitration of a bargaining dispute. • The no disadvantage test would apply to last resort arbitration.

42. Supporting Collective Bargaining The system should recognize the role of delegates in bargaining. • Authorized delegates should have rights of access to and communication with workers, inspection of the workplace and documents, and reasonable time off associated with their representative roles. • The Commission should be able to make orders to ensure delegates can perform their representative roles. • Commission should be able to issue interim remedial orders where there is prima facie evidence that a delegate has been subject to unfair interference or disadvantaged for performing their role