Below is my (slightly amended) letter in today’s Australian and the article published in yesterday’s edition by Paul Kelly which prompted my letter.
I have also included an (exclusive) article in today’s Australian reporting on an implication arising from the government’s proposal (announced yesterday) to legislate to make it easier for individuals to establish that they have been subject to discrimination. It appears that the proposed legislation will include provisions that, in effect, will make it unlawful for employers to discriminate against employees who are union activists. If an employee can establish a prima facie case of “unfavourable treatment”, the burden of proof to prove that is not the case will then fall on the employer. Given in particular that the body passing judgements will be the Human Rights Commission, this proposal suggests the establishment of worrying additional protective arrangements for unions and their members.
This would be consistent with other proposals to enhance or protect the power of unions before the next election. It also reinforces the need for the Opposition to publicly address the union power problem, although that appears increasingly unlikely to occur.
Des Moore
Abbott’s Priority
(Letter published in The Australian, 22/11. Square bracketed sentence deleted by Ed)
Paul Kelly suggests it would be astonishing if a government led by Tony Abbott did not establish an inquiry into “transparency and accountability within the union movement” and/or into the Fair Work Act (“Abbott faces rocky road on IR reform”, 21/11). But Australian voters are sick of inquiries and reviews when it is patently obvious what needs to be done.
The first priority for an Abbott government must surely be to eliminate the unfair and productivity destroying powers that the Gillard government has given to trade unions. [The business community has at long last woken up to the problems it faces and that were foreshadowed by the HR Nicholls Society.]
The Coalition does not need to announce a detailed deregulatory policy before the election: it can simply highlight the many destructive aspects, both economic and cultural, of the existing arrangements.
Des Moore, South Yarra, Vic
Abbott faces rocky road on IR reform
Paul Kelly, Editor-at-Large, The Australian, November 21, 2012
THE dialogue of the deaf on industrial relations is unbroken with Australian industry facing higher costs, growing uncompetitiveness and more inefficiency as the slow burn from Labor's Fair Work Act undermines the government's grand visions for the economy in the Asian Century.
The great myth of Labor's economic policy is that its Fair Work Act is a sustainable settlement. Australia is now trapped between the politics of grudging support for the Fair Work Act and economic pressures for change with the only issue being how many years lapse and how much pain will be inflicted before increasing unemployment and falling competitiveness force a new political breakout.
The Gillard government is utterly unmoved as warnings from business and industry mount. Its industrial settlement, based on the interests of the trade union movement, is non-negotiable.
One of the political tests facing Tony Abbott, if he wins the election, is to shift public opinion so that reform becomes a live option.
Based on Monday night's Q&A performance Abbott will have no more persuasive advocate than Malcolm Turnbull, praised these days by Labor as Mr Reasonable. Having Mr Reasonable contributing over the next few years
to the argument for IR reform would be an excellent use of Turnbull's profile.
Meanwhile Abbott, despite business pressure, will not expose his flank on industrial relations given Labor is desperate to re-run its Work Choices scare.
The equation is brutal: the nation will be put through a tightening economic wringer until the public mood arrives for an IR rethink. Sooner or later the wheel will turn against Labor but the damage inflicted in the interim may be immense.
The key to grasping Abbott's strategy lies in its three tiers: caution in the prelude to next year's election; building public support from office for reform in any first term as PM while keeping legislative change outside the building industry to a minimum; and, finally, seeking at his re-election a mandate for a new IR settlement in a second term. In short, it's a difficult, long, unpredictable road.
There are, however, two obvious paths forward. First, Abbott needs in his initial term to commission an independent, credible inquiry into the Fair Work Act with an emphasis on productivity. This is the pivotal step, yet the Coalition still has made no promise as such. The logical body to undertake this inquiry is the Productivity Commission since it is best equipped to analyse the interaction between industrial relations and productivity.
Note that when Labor conducted its recent limited, three-person IR review headed by Reserve Bank board member John Edwards, the Coalition said the Productivity Commission should have done that job.
Abbott has no chance of success without putting and winning the intellectual case for change in his first term. Earlier this week opposition Treasury spokesman Joe Hockey played down any Productivity Commission inquiry. As John Howard's last workplace relations minister, Hockey feels the reform agenda is obvious. Moreover, with Productivity Commission chairman Gary Banks retiring, there is suspicion within the Coalition and industry that Labor will make an appointment to recast the commission's culture.
Abbott's IR approach at the election next year, as he says, will be careful, cautious and responsible. The main reform he will take to the next election will be to re-establish the Australian Building and Construction Commission given the industrial conflict now besetting the industry. That will be a popular step.
The bedrock assumption among senior Coalition figures is that the case for major IR reform can be made only from office -- and that case will prevail if examples are highlighted of businesses being forced to close or wind back because of the Fair Work Act.
The second avenue for Abbott is a judicial inquiry from office into corruption, abuses and lack of accountability within trade unions. The evidence for such an inquiry comes from misappropriation and misuse of trade union funds in the Health Services Union and the fraud in the much debated Australian Workers Union's slush fund.
Former attorney-general Robert McClelland has argued the need for new laws in relation to registered organisations to ensure an effective and expeditious remedy where misconduct does occur. The Coalition has a policy along these lines. McClelland argues the current laws are inadequate and has called for action.
In his October 16 speech McClelland invoked the actions of president John Kennedy and his attorney-general Robert Kennedy in tackling criminal elements of the union movement. He quoted Robert Kennedy saying: "The Labor leaders who became thieves, who cheated those whose trust they had accepted, brought dishonour on a vital and largely honest labour movement." McClelland said Kennedy's warning was "particularly applicable to Australia".
Given that one of Abbott's most successful actions as minister was the creation of the Cole royal commission into the building industry; given the depth of union governance scandals that have emerged under the current Labor government; given that Abbott has just watched Julia Gillard play the royal commission card for political purposes and given the arguments mounted by Labor's former attorney-general, do you just sense the possibility that Abbott, in office, may establish an inquiry into transparency and accountability within the union movement?
Frankly, it would astonish if Abbott did not take such action. He has made no such pledge but his instincts would be obvious. It is fanciful to think Abbott in office would not turn the recent trade union scandals against Labor.
Meanwhile the business lobby closest to Labor, the Australian Industry Group, has issued its strongest warning that the Fair Work Act is untenable.
Its new chief, Innes Willox, reflecting the sentiment of his members, said "no matter which way you cut it, we have become a high-cost country".
Warning that unit labour costs were increasing rapidly and that the Fair Work Act had increased union power in 120 areas, Willox warned further that Labor just kept going -- it kept introducing new laws with the same impact, which meant "the traffic over the past two years has been all one way and it has gone in the wrong direction".
He said that branding anybody who wanted more flexibility as a Work Choices advocate "has to stop" and was "baseless fear-mongering".
Of course, it won't stop. It is now embedded in Labor's culture. The government dismisses the warning from Willox but, in the end, denial and spin cannot substitute for outcomes in the real economy.
Union ties 'basis for discrimination'
Ewin Hannan and Patricia Karvelas, The Australian, November 22, 2012
LABOR has given union representatives and members a new avenue to sue for alleged discrimination, fuelling employer warnings that new national laws will encourage "forum shopping".
The "industrial history" of a worker is among a series of attributes that will be further protected from discrimination under proposed changes announced this week by Attorney-General Nicola Roxon. The government's exposure draft acknowledges the inclusion of the protected attributes are among the "most significant changes from existing commonwealth anti-discrimination law".
Business groups, including the Australian Industry Group and the Australian Chamber of Commerce and Industry, said yesterday they were concerned that workers were being given a third way of pursuing a legal remedy for alleged discrimination based on union activity.
AI Group workplace policy director Stephen Smith said workers were already able to pursue similar claims through the Fair Work Act and state anti-discrimination laws.
Mr Smith said the Australian Human Rights Commission currently only had the power to conciliate such claims and the changes would allow complainants to seek legal remedies from employers.
"This gives a lot more power to employees to make a claim," he said.
"They will be able to pursue a remedy under the consolidated federal discrimination legislation, under the general protections provisions of the Fair Work Act and under state discrimination acts. Logically, people will look at all the different remedies and processes and choose which one they want to pursue. It will encourage forum shopping."
ACCI chief executive Peter Anderson said employers believed the claims should not be able to be pursued in multiple jurisdictions.
"One of our concerns is it raises the prospect of forum shopping," Mr Anderson said.
A spokeswoman for Ms Roxon said the intention was to simplify the regime.
"Mirroring the Fair Work Act grounds in the anti-discrimination regime ensures a single set of obligations and enables a complaint of discrimination on more than one ground to be made in the single regime," the spokeswoman said.
"If there were different sets of grounds, a complaint of discrimination on two grounds may need to be made twice: once to Fair Work Australia and once to the AHRC. This simplifies the regime for business while not introducing any new regulatory burden."
Acting opposition workplace relations spokesman Sussan Ley said the Coalition's position on the bill would be determined after it was introduced. "However, no one should be surprised that Labor wants to now extend its protection racket for union bosses into legislation," Ms Lay said.
Australian Mines and Metals Association chief executive Steve Knott welcomed the move to consolidate and simplify the anti-discrimination laws, but said the government must take steps to "minimise the likely compliance costs and regulatory burden on employers".
The government argues there is no new regulatory burden as the Fair Work Act already prohibits adverse action based on a person engaging in industrial activity.
It would also be unlawful for an employer to discriminate against an employee who represented or advanced the view of a union, paid union fees, or promoted or organised a lawful activity on behalf of a union.
ACTU president Ged Kearney said the shift in the onus of proof under the changes would make "it much easier for people to access justice or to get justice".
"I think it's making it fairer, particularly for the applicant, and rather than see an influx of cases, it might actually see a few people actually stick it out . . . as the onus is also on the employer to make a case,and not just the applicant," Ms Kearney said.