Academic journal article The Economic and Labour Relations Review : ELRR

Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices

Academic journal article The Economic and Labour Relations Review : ELRR

Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices

Article excerpt


The 2005 Workplace Relations Amendment (Work Choices) Act (Cth) (the Work Choices Act) introduced important and far reaching changes to the industrial action provisions of the Workplace Relations Act 1996 (Cth) (WRA). The changes will have a significant impact on the balance of power in the collective bargaining relationship, increasing the power of employers to the detriment of employees and employee organisations. This change comes at a time of historically low industrial disputation in Australia, a fact which could suggest that many of the changes are politically rather than industrially motivated.

This paper will examine the changes introduced by the Work Choices Act with respect to industrial action in the federal workplace relations system. The paper will provide a brief historical overview of the relationship between law and industrial action in Australia, before examining the substance of the changes in detail. In particular, the paper will focus on the effect of the changes on the balance of power in collective bargaining.

Industrial Action and the Law--the Australian Experience

Australian law has always had a difficult relationship with industrial conflict. The compulsory conciliation and arbitration model that prevailed in Australia for the better part of the twentieth century embraced the premise that if parties to industrial conflict were provided with an alternative compulsory forum for the resolution of disputes, there would be no need to resort to industrial action. All disputes could be resolved through the decision of an independent and impartial arbitrator, a role played by the Conciliation and Arbitration Court (now the Australian Industrial Relations Commission (AIRC)). However, the flawed nature of this premise was evident from the earliest days of the operation of conciliation and arbitration. Compulsory arbitration did not operate in practice to prevent strikes; rather it influenced strike behaviour, whereby Australia consistently maintained a high incidence of short sharp strikes rather than drawn out industrial conflict (Creighton and Stewart 2005: 23).

Strikes were uneasily accommodated within compulsory arbitration, leading to two well recognised oddities. First, the conciliation and arbitration system was not either free market collective bargaining or true compulsory conciliation and arbitration. The model was hybrid in nature, drawing upon elements of bargaining and of compulsory arbitration. Sykes and Glasbeek (1972: 368) observed:

   The notion was simple enough. Employers could try to set the terms
   of employment by individual bargaining or, if the employees had
   managed to create a cohesive group or trade union, by collective
   bargaining. But in either case, if a deadlock ensued, then the
   disputants had to submit to an external settlement of their
   quarrels. Thus, the scheme theoretically endorsed regulation of
   industrial conditions by a commercial free-for all limited by the
   law of private contract and by the newly evolved legal and economic
   concepts associated with collective action, and finally, by the
   forceful imposition of a solution agreed to by neither party to the

The second oddity of the conciliation and arbitration system was the enforcement paradox identified and explored by Creighton (1991:4). Under conciliation and arbitration strike action was for all practical purposes unlawful, with the potential to attract a wide range of civil penalties or statutory sanctions, yet industrial action continued unabated. Potential sanctions were rarely utilised in practice, leading to a dichotomy between the availability of sanctions and the willingness of participants in the industrial arena to use them. Consequently, the role of strikes within conciliation and arbitration was incongruous. Strikes were unlawful but rampant. Enforcement mechanisms abounded, yet until the mid 1980's few efforts were made to apply them. …

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