The australian government should stop interfering in employment relationship

Know your rights when it comes to an office romance | Money | The Guardian

the australian government should stop interfering in employment relationship

The Head of the Commonwealth Government is the Prime Minister. As Federal laws in all of these areas will override inconsistent State laws, the . In South Australia, the Industrial and Employee Relations Act (SA) governs the .. from inducing an employee to stop being an officer of member of a trade union. There are parallel arguments about how governments should frame laws and and Australia there is an inextricable link between employment relations and .. of employment relations-‐ stops short of a full explanation • Radicals argues employers to directly negotiate with their employees without the interference of. A labour or industrial relations system reflects the interaction between the main they can also encompass individual employment relationships between an Furthermore, the public authorities must “refrain from any interference which .. to succeed if workers have the power to stop production or to call a government.

Some reshuffling of duties may be in order if you want to avoid friction and resentment among colleagues. Wallace, who met her husband at work, says couples should protect themselves by dealing with each other on strictly professional terms.

the australian government should stop interfering in employment relationship

Don't talk about your job when you get home either, otherwise the office can become your life. My partner is more senior but he's not my line manager, so I don't feel obliged to tell anybody," she says. But keeping an office affair quiet is hard work. Your colleagues don't want to catch you snogging in the lift or fumbling in the stairwell, especially if they've just had their lunch. Getting physical could also put you in breach of the implied term of "good faith" that says staff conduct should act in the best interests of the company, says Sally Laughton, employment solicitor at Andersons Solicitors in Nottingham.

Holding hands or briefly kissing may be seen as inappropriate but won't justify dismissal, whereas more explicit behaviour might. Same-sex workplace relationships can be particularly problematic because they alert colleagues to your sexuality and expose you to banter or worse. The terms of an award can legally bind employers, employees and trade unions. The AIRC also has the power to set aside or vary awards s The matters listed include rates of pay, leave, superannuation, classifications of employees and hours of work.

All awards in force must only contain provisions that relate to allowable matters: The process of award simplification therefore affects the content of awards made in settlement of industrial disputes before the entry into force of the Act. This process of award simplification was held to be constitutionally valid by the High Court of Australia: There have been several attempts to further limit the matters that may be provided for in an award.

Among other things, this Bill would exclude from the list of allowable matters the following: There are limited circumstances in which the AIRC may make an award that includes provisions not included in the list of allowable matters. The AIRC may also include provisions in an award that do not relate to allowable matters if it is exercising arbitration powers after having terminated a bargaining period on certain grounds. These include that industrial action taken during bargaining is endangering the life, safety, health or welfare of the population or part of it, or that industrial action taken during bargaining is causing significant damage to the Australian economy ss MW 3MX and MY.

Another area in which the AIRC may arbitrate without being constrained by the limitation in s 89A is where it exercises power under a dispute settlement procedure in a certified agreement. In these circumstances its powers of arbitration, if any, derive from the agreement of the parties, and so is not limited by the legislative framework: Certified agreements cover There are two streams of agreement-making under the Workplace Relations Act Cth.

Only 14 per cent of agreements certified in the years and have been made under Division 3 Commonwealth of Australia, Agreement Making in Australia under the Workplace Relations Act — and On one view, expressed obiter dicta by a Full Court of the Federal Court of Australia, it is appropriate to consider the agreement as a whole when deciding whether it answers the description in s LI: The decision is subject to an application for special leave to appeal to the High Court of Australia.

On the other view, expressed by a Full Bench of the AIRC, every term in an agreement must answer the description, save for those terms that are appropriately ancillary to terms that do answer the description, or for terms that are mechanical: The question has arisen for consideration mainly in relation to terms of agreements sought or gained by trade unions that offer a measure of union security.

As noted, the Government has introduced legislation to attempt to make the last of these unlawful in any event Workplace Relations Amendment Prohibition of Compulsory Union Fees Bill Cth.

There are three types of certified agreement. The first permits unions to be parties to certified agreements provided they have at least one member working for the employer whose interests they are entitled to represent s LJ. The second type is non-union agreements negotiated directly between employees and the employer s LK. These are negotiated between an employer and a union or unions in a workplace where no worker has yet been employed s LL.

Certified agreements are subject to approval by the AIRC and a majority of employees covered by a proposed agreement and must be re-negotiated every three years. In general, agreements should cover only a single business, as defined, although a Full Bench of the AIRC may certify an agreement that covers more than one business where it is in the public interest to do so ss L, LB and LC.

A certified agreement must contain provision for resolution of disputes s LT 8. Certified agreements prevail over State laws or employment agreements to the extent of any inconsistency, with some exceptions s LZ. State laws regulate additional collective bargaining regimes.

At the workplace level, workers may be represented by trade union delegates. Employers are bound to consult with trade unions when contemplating certain types of redundancies: The terms of certified agreements may provide for workplace committees with representatives of both the employer and employees, and commonly do so as part of dispute settlement procedures.

Beyond this, however, forms of workplace representation tend to be on an ad hoc basis, although quite common. Trade unions enjoy representation on the boards of government-regulated superannuation funds Superannuation Industry Supervision Act Cth pt 9. Trade unions and employer representatives have an equal number of votes on the board. State laws regulating occupational health and safety commonly require the establishment of health and safety committees at the workplace, and in some cases give a privileged position to unions in their creation and election see for example Occupational Health and Safety Act Vic s Strikes and Lock-Outs Liability for industrial action in Australia arises under both Federal and State legislation and the common law.

This decision is the subject of an appeal to the Full Court of the Federal Court of Australia that has been argued, but not decided. On application, the Federal Court may grant a permanent or interim injunction if it considers that a person or organisation is contravening a section 1 order.

The AIRC may not make an order under s in respect of protected action. As noted below in the discussion of the application of the industrial torts, however, it is possible to commence common law proceedings even in respect of protected industrial action. Thus, picketing action is subject to the full range of common law liabilities and sanctions see below. Apart from taking protected industrial action, however, the parties are not permitted to impose illegitimate pressure in the course of bargaining s NC.

As discussed below, this may include the strategic use of litigation during the course of bargaining.

the australian government should stop interfering in employment relationship

Breach of an injunction may constitute a contempt of court, for which the available punishment includes fines and imprisonment. Industrial action is also proscribed where it is in support of a claim for strike pay ss AB, A or involves a secondary boycott s MM.

Secondary boycotts are also prohibited outright: Trade Practices Act Cth ss 45D—45EA; penalties for breach of these provisions include fines, claims for damages and the grant of injunctions. Sympathy action is also effectively prohibited under the Federal Act: Since the several conservative Federal governments that have held office have attempted to introduce various amendments to the scheme of the Workplace Relations Act Cth as it regulates the taking of industrial action.

As noted above, the Workplace Relations Amendment Genuine Bargaining Bill would limit the ability of unions to take protected industrial action during the course of multi-emploer bargaining. There have been several attempts to introduce provisions that would require a secret ballot of employees as a precondition to industrial action being protected.

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Many of these attempted amendments have been repeatedly rejected by the Senate, and it would not appear that there is a significant prospect of them becoming law in the near future, if at all.

As noted, the common law also applies to industrial action in Australia. Thus, industrial action will usually amount to the torts of contractual interference, conspiracy, intimidation and unlawful interference; picketing will normally give rise to liability in other torts including public and private nuisance and trespass among others.

Remedies for the commission of these torts could be injunctive or pecuniary. This is subject to certain exceptions, including conduct causing personal injury, that is wilfully destructive of property, or that occurs during a demarcation dispute s A 2. Under s A the AIRC is to attempt by conciliation to stop the conduct in question, but if it cannot, or if the conduct continues for more than 72 hours, it is required to issue a certificate.

The purpose of s A is to attempt to restrain parties to disputes that have given rise to industrial action from seeking injunctive relief in the courts, instead of focusing on resolution of the dispute. Apart from the limitation inherent in the requirement that the AIRC give a certificate if the action has not stopped after 72 hours, a number of decisions in State Supreme Courts have held that injunctive relief is available to restrain industrial action, without a certificate under s A, on the basis that an injunction is an equitable remedy in aid of an action in tort, not itself an action in tort, which is what requires a certificate under s A.

A number of Federal Court decisions have suggested that this is not accurate. Within the European Union, practice in member countries has changed to reflect directives dealing with consultation of workers and their representatives, including those on health and safety matters in particular. Employers Employers—that is, providers of work—are usually differentiated in industrial relations systems depending upon whether they are in the private or the public sector.

National Labour Law Profile: Australia

Historically, trade unionism and collective bargaining developed first in the private sector, but in recent years these phenomena have spread to many public sector settings as well. In Eastern and Central Europe, one of the major challenges of the post-Communist era has been the establishment of independent organizations of employers.

In practice, most of this takes place in the ILO, which has responsibility for these questions in the United Nations system. The IOE also has Category I consultative status with the Economic and Social Council of the United Nations, where it intervenes whenever matters of interest or consequence to employers arise.

The IOE is one of only two organizations that the employer community has set up to represent the interests of enterprise globally. The other is the International Chamber of Commerce, with its headquarters in Paris, which concerns itself principally with economic matters. While structurally quite different, the two organizations complement each other. They cooperate on the basis of an agreement which defines their areas of responsibility as well as through good personal relations between their representatives and, to a degree, on a common membership base.

Many subjects cut across their mandates, of course, but are dealt with pragmatically without friction. On certain issues, such as multinational enterprises, the two organizations even act in unison. ILO In the private sector, the situation has been summed up as follows: Employers have common interests to defend and precise causes to advance.

In organizing themselves, they pursue several aims which in turn determine the character of their organizations. The representative function may occur in the political structure or in industrial relations institutions. Political representation is found in systems where consultation of interested economic groups is foreseen by law e. The way in which the representative function in the industrial relations system occurs depends very much on the level at which collective bargaining takes place in a particular country.

Research is the prime example, since it can be used for multiple purposes. Safety and health is an area in which data and information can be usefully shared by employers across sectors. In developing countries, the main challenge has been the integration of a very heterogeneous membership that may include small and medium-sized businesses, state enterprises and subsidiaries of multinational corporations.

The size of an enterprise is a major determinant in its approach to labour relations, with the employer of a small workforce being more likely to rely on informal means for dealing with its workers. Where collective bargaining occurs at the enterprise level, it is much more likely to exist in large firms; where it takes place at the industry or national level, it is more likely to have an effect in areas where large firms have historically dominated the private sector market.

However, employers find it a much greater sacrifice to comply with the decisions and regulations of their associations, as these reduce their much cherished freedom of enterprise. Public employers have come to see themselves as such only relatively recently. They later resisted calls to engage in collective bargaining with the argument that the legislature, not the public administration, was the paymaster and that it was thus impossible for the administration to enter into an agreement.

These arguments, however, did not prevent often unlawful public sector strikes in many countries and they have fallen by the wayside. Collective bargaining in the public sector is now a way of life in many developed countries e.

The level of employer representation in the public sector depends largely upon the political system of the country. In some this is a centralized function as in France whereas in others it reflects the various divisions of government as in the United States, where bargaining can take place at the federal, state and municipal levels.

Germany presents an interesting case in which the thousands of local communities have banded together to have a single bargaining agent deal with the unions in the public sector throughout the country. The designation of the bargaining agent in the public sector varies considerably by country; it may be the Public Service Commission, the Ministry of Labour, the Ministry of Finance or another entity altogether. The positions taken by a public employer in dealing with employees in this sector tend to follow the political orientation of the ruling political party.

This may range from taking a particular stance in bargaining to a flat-out denial of the right of public employees to organize into trade unions.

However, while as an employer the public service is shrinking in many countries, there is an increasing readiness on its part to engage in bargaining and consultations with employee representatives. The origins of trade unions go back as far as the first attempts to organize collective action at the beginning of the industrial revolution. Trade unions reflect the conviction that only by banding together can workers improve their situation.

Trade union rights were born out of economic and political struggle which saw short-term individual sacrifice in the cause of longer-term collective gain. They have often played an important role in national politics and have influenced developments in the world of work at the regional and international levels. Having suffered membership losses, however, in recent years in a number of countries in North America and some parts of Europetheir role is under challenge in many quarters see figure The pattern is mixed with areas of membership growth in the public service in many countries around the world and with a new lease on life in places where trade unions were previously non-existent or active only under severe restrictions e.

The flourishing of democratic institutions goes hand in hand with the exercise of trade union freedoms, as the cases of Chile and Poland in the s and s best illustrate. A process of internal reform and reorientation to attract greater and more diverse membership, particularly more women, can also be seen within trade union circles in a number of countries. Trade unions may be affiliated to umbrella organizations at the industrial, national, regional and international levels. International Labour Federations The international labour movement on a global, as opposed to a regional or national level, consists of international associations of national federations of labour unions.

There are currently three such internationals, reflecting different ideological tendencies: The ICFTU is the largest, with affiliated unions from countries inrepresenting million trade union members. These groups lobby intergovernmental organizations on overall economic and social policy and press for worldwide protection of basic trade union rights. They can be thought of as the political force behind the international labour movement.

The industrial force of the international labour movement lies in the international associations of specific labour unions, usually drawn from one trade, industry or economic sector. Coverage has traditionally been by sector, but also in some cases is by employee category such as white-collar workersor by employer public or private.

The ITSs concentrate mainly on industry-specific issues, such as industrial disputes and pay rates, but also the application of health and safety provisions in a specific sector. They provide information, education, training and other services to affiliated unions. They also help coordinate international solidarity between unions in different countries, and represent the interests of workers in various international and regional forums.

Such action is illustrated by the international trade union response to the incident at Bhopal, India, involving the leak of methyl isocyanate, which claimed thousands of victims on 3 December The report contained recommendations for preventing similar disasters and endorsed a list of safety principles; this report has been used by trade unionists in both industrialized and developing countries as a basis of programmes for improving health and safety at work.

Trade unions are structured along various lines: There are also general unions, which include workers from various occupations and industries. Even in countries where mergers of industrial unions and general unions are the trend, the situation of agricultural or rural workers has often favoured the development of special structures for that sector. On top of this breakdown there is often a territorial division, with regional and sometimes local subunits, within a union.

In some countries there have been splits in the labour movement around ideological party politics and even religious lines which then come to be reflected in trade union structure and membership. Public sector employees tend to be represented by unions separate from those representing employees in the private sector, although there are exceptions to this as well. The legal status of a trade union may be that of any other association, or it may be subject to special rules.

A great number of countries require trade unions to register and to divulge certain basic information to the authorities name, address, identity of officials, etc. In some countries this goes beyond mere record-keeping to interference; in extreme cases of disregard for freedom of association principles, trade unions will need government authorization to operate. As representatives of workers, trade unions are empowered to enter into engagements on their behalf.

Some countries such as the United States require employer recognition of trade unions as an initial prerequisite to engaging in collective bargaining. Trade union density varies widely between and within countries. In some countries in Western Europe, for instance, it is very high in the public sector but tends to be low in the private sector and especially in its white-collar employment.

The figures for blue-collar employment in that region are mixed, from a high in Austria and Sweden to a low in France, where, however, trade union political power far exceeds what membership figures would suggest.

There is some positive correlation between centralization of bargaining and trade union density, but exceptions to this also exist. As voluntary associations, trade unions draw up their own rules, usually in the form of a constitution and by-laws. In democratic trade union structures, members select trade union officers either by direct vote or through delegates to a general conference.

Internal union government in a small, highly decentralized union of workers in a particular occupational group is likely to differ significantly from that found in a large, centralized general or industrial union. There are tasks to allocate among union officers, between paid and unpaid union representatives and coordination work to be done.

The financial resources available to a union will also vary depending upon its size and the ease with which it can collect dues. Extremely low wages and thus dues there and in developing countries with government-supported unions make it difficult to build a strong independent union movement.

In addition to the important function of collective bargaining, one of the main activities of trade unions in many countries is their political work. This may take the form of direct representation, with trade unions being given reserved seats in some parliaments e. In the European Union, trade union federations have had an important impact on the development of social policy. More typically, trade unions have an influence through the exercise of power backed up by a threat of industrial action and lobbying political decision makers at the national level.

It is certainly true that trade unions have successfully fought for greater legislative protection for all workers around the world; some believe that this has been a bittersweet victory, in the long run undermining their own justification to exist. The objectives and issues of union political action have often extended well beyond narrower interests; a prime example of this was the struggle against apartheid within South Africa and the international solidarity expressed by unions around the world in words and in deeds e.

Whether trade union political activity is on the offence or the defence will of course depend largely on whether the government in power tends to be pro- or anti-labour. In other countries there is a traditional interdependence between the labour movement and a political party e.

In any event, the power of trade unions often exceeds what would be expected from their numerical strength, particularly where they represent workers in a key economic or public service sector, such as transport or mining. In some instances they exist alongside trade unions; in others they are the only type of participation available to workers. The third type of function of trade unions, providing services to members, focuses first and foremost on the workplace.

This may involve taking up an individual grievance over discipline or dismissal, or cooperating with management on a joint health and safety committee. Outside the workplace, many unions provide other types of benefit, such as preferential access to credit and participation in welfare schemes.

The union hall can also serve as a centre for cultural events or even large family ceremonies. The range of services a union can offer to its members is vast and reflects the creativity and resources of the union itself as well as the cultural milieu in which it operates. The power of trade unions depends on various internal and external factors.

We can distinguish between organizational power how many internal sources of power can unions mobilize? Visser in van Ruysseveldt et al. Among the factors he identifies for a strong trade union structure are the mobilization of a large, stable, dues-paying and well-trained membership to this could be added a membership that reflects the composition of the labour marketavoidance of organizational fragmentation and political or ideological rifts and development of an organizational structure that provides a presence at the company level while having central control of funds and decision making.

Whether such a model for success, which to date has been national in character, can evolve in the face of an increasingly internationalized economy, is the great challenge facing trade unions at this juncture. In a very real sense, therefore, respect for the right to organize can be seen to be an essential precondition of an effective occupational safety and health strategy at both the national and international level and at the workplace.

That being the case, it is necessary and appropriate to look more closely at ILO standards relating to freedom of association, bearing in mind their application in the context of the prevention of work-related injury and disease and the compensation and rehabilitation of those who have incurred such injury or disease.

Freedom of association standards require that there be proper recognition in law and practice of the right of workers and employers to form and to join the organizations of their choice and of the right of those organizations, once established, to formulate and to implement freely their programmes. Rights of association and representation also underpin tripartite governments, employers and workers cooperation in the field of occupational health and safety.

Such cooperation is promoted in the context of ILO standard-setting, for example, by: This principle now finds express recognition in the Preamble to the Constitution as one of the essential preconditions of the establishment of social justice, which is itself seen as the essential precondition of universal and lasting peace. Together with the principle of tripartism, it is also accorded express recognition in Article I of the Declaration of Philadelphia, which was appended to the Constitution in It does not, however, say anything about the rights which are to be accorded to the industrial workers with whom those engaged in agriculture are to enjoy parity!

Attempts to adopt a more general instrument dealing with freedom of association in the s foundered upon the rocks of employer and government insistence that the right to form and join trade unions must be accompanied by a correlative right not to join.

The matter was re-opened in the period immediately after the Second World War. Between them they embody what can properly be regarded as the four key elements in the notion of freedom of association.

the australian government should stop interfering in employment relationship

They are regarded as the benchmark for the international protection of freedom of association for trade union purposes, as reflected, for example, in Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 22 of the International Covenant on Civil and Political Rights. They also constitute a major focus for the deliberations of the Committee of Experts on the Application of Conventions and Recommendations and of the Conference Committee on the Application of Conventions and Recommendations.