Unions and Collective Bargaining in 2011

Abstract

In 2011, Australian unions successfully extended collective bargaining in some quarters while, in others, they engaged in lengthy industrial campaigns. At the heart of a number of these campaigns lay the issue of job security and controls over staffing. The challenge to managerial prerogative prompted some unforeseen actions, including lockouts, by employers, the most dramatic example being seen at Qantas. Unexpectedly, this also included an employer preference for arbitration not previously seen under the Fair Work Act 2009. Union activity to increase union density remained a challenge, with the Australian Council of Trade Unions shifting to a campaigning focus in an attempt to identify salient issues confronting members. Relations with the federal government were overall fairly positive, in particular, with some advances made in the area of occupational health and safety. This was in contrast to relations with a number of state governments as a result of their bargaining tactics and strategies.

Keywords

collective bargaining Fair Work Act industrial disputes Qantas trade unions

Introduction

For unions, 2011 was a year of mixed experiences, a year of both frustrations and of opportunities. Unions were confronted by a number of employers in the public and private sectors circumventing bargaining processes either through lockouts, forced arbitration or by governments using their executive power. Lockouts affected the waterfront as well as security guards, cold storage and aged care workers. Although some individual unions showed membership growth, overall density fell and unions continued to be confronted by the prospect of job losses due to corporate restructuring. The contours of collective bargaining under the Fair Work Act 2009 continued to develop amid demands by employers for more ‘flexibility’ and for a return to individual agreements, a matter that continued to dog the federal opposition. Unions were faced with perennial health and safety issues while also having some major campaign achievements concerning occupational cancer and safe rates.

This review begins with an overview of the union membership and industrial disputation statistics. It then turns to an examination of collective bargaining in 2011. This is followed by a discussion of developments in federal industrial relations, Australian Council of Trade Unions (ACTU)/union and federal government relations, and occupational health and safety. The final section focuses on union–state government relations, returning to bargaining experiences.

Union Membership and Industrial Disputation Patterns

Hopes for a consolidation of union membership were dashed by the release of the August 2010 membership statistics in April 2011 (Australian Bureau of Statistics (ABS), 2011a). Both the percentage and absolute number of union members had fallen between August 2009 and August 2010. This reinforced the difficulties faced by unions in trying not only to recruit, but to hold on to, members. The percentage of union members fell from 19.7% to 18.3%, as 47,000 members were lost. Male membership losses led to a reversal of the gender gap so that, for the first time, female density was higher than male density. The decline in male density (by 2.2 percentage points to 17.9%) was accompanied by an absolute loss of male members. The number of female members grew, although not by enough to sustain density, which declined by 0.5 percentage points to 18.7%. In all states, density fell, the decline being the greatest in New South Wales (NSW) (2.7 percentage points). Although Tasmania remained the most unionized state or territory, density there fell by 2.4 percentage points. Western Australia (WA) continued to build on the increases in 2009 membership figures, although these did not keep up with employment growth, causing density to decline slightly, a pattern replicated in Victoria and Queensland (ABS, 2011a).

The 2009 increase in public sector union membership density, which had risen from 41.9% in 2008 to 46.3% in 2009, proved temporary as it fell back to 41.5% in 2010. Most of the decrease was among male public sector members, whose density dropped by nearly 10 percentage points from 51.1% to 41.5%, compared to a 1.5 percentage point decrease in the number of female public sector members, from 43.0% to 41.5%. On a more encouraging note, private sector density remained stable at 13.8%, as a marginal increase in female density offset fewer male members. In terms of employment status, absolute numbers and density fell among both full-time employees (from 21.9% to 20.1%) and part-time employees (from 14.6% to 14.2%). Looking at industry patterns, public administration and safety, and education and training recorded the biggest decreases. Mining was among the few industries to see an increase in male membership (by 2.3 percentage points).

The quarterly industrial disputation statistics provide two measures: one, working days lost (WDL); and, two, disputes. In 2011, media commentary increasingly focused on industrial disputation levels, particularly the spike in WDL in the September 2011 quarter. However, the swings in WDL that were seen in 2006 to 2008 have, over the past few years, settled into oscillations of around 120,000 to 165,000 WDL per year. The September quarter’s increase in WDL reflected both the impact of a NSW state-wide rally in opposition to public sector employment cuts, as well as industrial action being taken in concurrent industrial campaigns (discussed later). The number of disputes that occur each calendar year are now commonly in the vicinity of the mid-100s to low 200s, with a decrease from 233 disputes (year ended September 2010) to 197 disputes (year ended September 2011). Reflecting previous patterns, the September statistics indicated that around half of all disputes in the first two quarters were enterprise bargaining-related, the industrial action typically being a single day with a predetermined return to work (ABS, 2011b).

Unions and Collective Bargaining

Unions settled into the rhythm of collective bargaining with major bargaining rounds in the federal public service, airlines, on the waterfront and in coal mining. With over a hundred agreements expiring in 2011, together with a new Australian Public Service (APS) bargaining framework, APS bargaining saw tens of thousands of Community and Public Sector Union (CPSU) members imposing bans and taking stop-work action in 2011. This included customs and border protection officers, weather forecasters, scientists, nuclear agency staff and quarantine staff. The airline industry was the focus of numerous industrial campaigns, as negotiations that commenced in 2010 led into new bargaining rounds in 2011. At Qantas, this led to coalescence of multiple bargaining rounds and included the Transport Workers Union (TWU), Australian Licensed Aircraft Engineers Association (ALAEA), the Australian and International Pilots Association (AIPA), as well as the Australian Services Union (ASU), the National Union of Workers (NUW) and the Flight Attendants Association of Australia, domestic/regional division. For the Virgin Independent Pilot Association (VIPA), two years of negotiations resulted in the first collective agreement for Virgin Australia pilots in August 2011 (VIPA, 2011).

Qantas

By far the most significant dispute in 2011 was that seen in Qantas. Indeed, it involved three sets of enterprise bargaining negotiations. Two of these negotiations, with the ALAEA and AIPA, had commenced in August 2010, while bargaining with the TWU began in 2011. What was common to the claims of the three unions was the issue of job security and, in particular, the offshoring of engineers’ work, the employment of overseas pilots and the loss of Australian jobs arising from the planned expansion into Asia. Each negotiation developed its own trajectory with the least progress made in the AIPA’s case, as well as the least disruption to the travelling public (for a chronology, see [2011] FWAFB 7444, Appendix 1). Talk of industrial action began early in 2011 with the AIPA foreshadowing action as discussions over job security stalled in February (Creedy, 2011a). From July, the AIPA’s ‘When you board a Qantas flight you expect a Qantas pilot’ campaign included onboard passenger announcements and pilots wearing red ties. Although conciliation of the ALAEA–Qantas dispute had commenced with Fair Work Australia’s (FWA’s) Senior Deputy President Kaufman in May, progress was slow. The ALAEA planned and then called off a one-hour stoppage in May and in late August, but daily one-hour stoppages commenced, action that was planned to continue until mid-December 2011 (Creedy, 2011b). The TWU’s campaign of industrial action of mainly one- to two-hour stoppages commenced in September and continued into October. Both the ALAEA and TWU called stoppages only to cancel them, sometimes with little notice, causing disruption as Qantas tried to reschedule cancelled and delayed flights (Hannan, 2011a; Heasley, 2011a). Two announcements by Qantas in August aggravated the growing tension with the unions. On 16 August, plans to cut 1000 jobs and create two new Asian airlines were revealed while, a week later, an AUD$249m after-tax profit was confirmed (Heasley, 2011b).

The unpredictability of whether proposed industrial action would take place, along with the ALAEA forecasting escalating action through to Christmas, began to take its toll on Qantas. On 13 October, the company cited the ALAEA’s maintenance bans as the reason for its grounding for a month of five aircraft, which in turn led to more flight cancellations. This action led to increasing pressure being placed on the federal government to intervene, using provisions in the Fair Work Act 2009 to suspend or terminate industrial action (Creedy et al., 2011). Hope for an end to the TWU dispute faded with the union rejected Qantas’s offer of a 3% per year wage increase, a 1% superannuation increase and no forced redundancies for the life of the agreement on 18 October because of ongoing concerns over job security. Against this backdrop, the approval of a substantial increase in chief executive Alan Joyce’s remuneration package, amid claims at the Qantas Annual General Meeting (AGM) on 28 October, that the disputes had cost the airline AUD$67m, further divided the parties.

Nevertheless, few were expecting Qantas’s escalation of action the day after the AGM. On Saturday 29 October, Qantas chief executive Alan Joyce held a press conference to announce not only a pending lockout of employees (ramp, baggage handling and catering employees, pilots and licensed aircraft engineers) covered by the three agreements under negotiation with unions (from 8 p.m. on Monday 31 October), but also an immediate grounding of its entire fleet both in Australia and overseas, effective by 5 p.m. that day ([2011] FWAFB 7444 Appendix 1). The lockout was Qantas’s response to the prospect of ongoing industrial action (despite there being no current action) claimed Joyce, while concern over staff reactions to the imminent lockout was the reason given for the grounding. This unprecedented action, which stranded tens of thousands of domestic and international passengers, forced the federal government to act, leading to the first ministerial intervention under s. 424 of the Fair Work Act 2009 to terminate industrial action. Coinciding with the Melbourne Spring Racing Carnival (including the Melbourne Cup) and the second-last day of the Commonwealth Heads of Government Meeting in Perth, the Qantas dispute transfixed the nation over the last weekend in October, from the press conference late on the Saturday afternoon to the FWA emergency hearing that began later that same night, adjourned in the early hours of Sunday before recommencing in the afternoon and again continuing into the night (Ferguson, 2011).

In its deliberations over whether it should terminate all industrial action, the FWA Full Bench made it clear that it was Qantas’s action that was threatening significant economic damage. In contrast, the unions’ industrial action was regarded as regular bargaining practice. Moreover, it was ‘unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries’ ([2011] FWAFB 7444, at 10). The Full Bench’s decision on 31 October to terminate industrial action – which had the effect of stopping any further action by the three unions and Qantas, including the lockout – then ushered in 21 days of conciliation for the parties to try to conclude three separate agreements before the matters went to arbitration. The AIPA launched a legal challenge to the FWA decision and Adam Bandt, the federal Greens Party spokesperson on industrial relations, promised a private members bill (aimed at redressing the lack of notice periods for lockouts or actions such as the grounding). Not surprisingly, at the end of the 21 days, no agreement had been finalized between the unions and Qantas management. In the week before Christmas, it was announced that agreement had been reached between the ALAEA and Qantas, with protection, but no extension, of existing job security provisions. The TWU and AIPA settled down to prepare for what was envisaged to be lengthy arbitration hearings in 2012 (Creedy, 2011c).

Waterfront

Enterprise bargaining negotiations between the Maritime Union of Australia (MUA) and Patrick Ports, which had commenced in 2010, continued into 2011. Pursuing claims for improved safety, training and permanency, the MUA stepped up pressure with industrial action resuming from April 2011. While the focus on safety arose from union anger over fatalities in 2010 (albeit at ports other than Patrick operations), broader concerns over safety at Patrick docks were underscored by a landmark legal decision in January. The Melbourne Magistrates Court convicted and fined Patrick AUD$180,000 for discrimination against a health and safety representative, under s. 76 of the Victorian Occupational Health and Safety Act 2004, a decision later upheld after Patrick unsuccessfully appealed to the Victorian Supreme Court (Worksafe Victoria, 2011; [2011] VSC 597).

After rolling stoppages shut down ports in Victoria, WA, Port Kembla and Brisbane, the company unsuccessfully sought suspension of the bargaining period under s. 425 in an attempt to trigger access to arbitration in early May. In that case, Senior Deputy President Kaufman stated: ‘Although the industrial action is causing significant financial harm to Patrick and adversely affecting its customers, these are the natural, expected and intended consequences of the taking of protected industrial action’ ([2011] FWA 3059, at 19).

On the eve of seven days of action at numerous ports, in a bizarre twist, plans to lock employees out for a month were inadvertently (and embarrassingly) conveyed to a MUA negotiator by a Patrick negotiator (Stevens, 2011a). In response to the union’s industrial action, Patrick closed container ports, preventing any work being done and, in turn, prompting the MUA to call off the bans. Industrial action resumed in late September when redundancies were announced at the Port Kembla wharf as a consequence of BlueScope Steel’s restructuring (discussed later). While agreement with Patrick was finally reached, attention then shifted to P&O Automotive and General Stevedoring (POAGS) and DP World.

After negotiations broke down with POAGS, the MUA commenced protected industrial action with bans imposed at five ports in December 2011. Tension escalated when POAGS responded with a lockout at Fremantle and Bunbury, and strike breakers were flown in by helicopter to avoid picket lines at Port Kembla (Skulley, 2011a). The lockout prompted the new federal Workplace Relations Minister, Bill Shorten, to intervene in the dispute. On the same day that he was sworn in to his new office (after a ministerial reshuffle by the Prime Minister in mid-December), he met with the parties. The union’s agreement to POAGS’s request for compulsory conciliation and a four-week moratorium on industrial action led to a temporary cessation of hostilities (Skulley and Kerr, 2011).

Coal Mining

Protracted negotiations in coal mining centred on Queensland’s Bowen Basin in 2011. The Construction, Forestry, Mining and Energy Union (CFMEU), the Australian Manufacturing Workers Union (AMWU) and the Electrical Trades Union (negotiating as a single bargaining unit) struggled to reach agreement with BHP Billiton Mitsubishi Alliance (BMA) over matters including rostering, job security and pay parity for contractors. After six months in the first half of 2011, rejection of a company wage offer (including a sign-on bonus but no movement on the other key issues) ushered in waves of industrial action at six mines, commencing in June. This was the first industrial action seen in the Bowen Basin in almost 10 years. In September, BMA unsuccessfully sought to circumvent the unions, taking the proposed agreement ‘directly’ to employees who, in turn, overwhelmingly rejected it (Hannan, 2011b). Union industrial action recommenced in early November with no immediate prospect of agreement (Permatasari and Behrmann, 2011).

Rio Tinto

Two unexpected industrial relations developments occurred in the Pilbara, long the site of hard-line company resistance to unions and collective bargaining, in 2011. First was the news in June that Rio Tinto and the CFMEU had reached ‘in principle’ agreement concerning a collective agreement for locomotive drivers, which was subsequently approved by employees. With collective representation at the heart of the union’s strategy, this was a symbolic agreement, which provided for equitable conditions with staff employees. As Gary Wood, CFMEU mining division WA secretary, emphasized, not only did it set ‘a platform to build on in the next round of negotiation in rail’, but it sent a message about collective bargaining returning to the Pilbara (Stevens, 2011b). The opening of a new lodge, the Karratha Lodge, in September reasserted the Pilbara as ‘union space’ (CFMEU, 2011). Second was the Federal Court Full Bench decision in October, which ruled that the 2008 Pilbara Iron Employee Agreement was invalid. This was the non-union collective agreement Rio Tinto had used, in effect, to roll over the terms of Australian Workplace Agreements (AWAs) after they were removed by the incoming Rudd government through Fair Work Act transitional arrangements. As the agreement applied to all workers since that time, the Court’s decision potentially affected between 1500 and 2000 employees. In addition, there was the flow-on to other companies which had acted in similar ways. As a consequence, Rio Tinto announced that it would appeal to the High Court (Hannan, 2011c). The clear message was that Rio Tinto may now be prepared to deal with unions, but on its own terms as far as it was possible.

Developments in Federal Industrial Relations

Throughout 2011, media attention continued to focus on the federal Coalition’s industrial relations policy. The federal opposition received plenty of advice from former ministers, such as Peter Reith, and persistent questioning in relation to the policy direction that would be adopted by the Coalition parties. Still confronted by the spectre of Work Choices, the federal opposition leader, Tony Abbott, finally ruled out the reintroduction of statutory industrial agreements when he stated on the Australian Broadcasting Commission's (ABC’s) 7.30 programme in September that ‘We don’t support statutory individual contracts. We did once. We don’t now’ (ABC, 2011a). Abbott’s argument became focused on identifying opportunities in the current legislation for increased flexibility. Abbott flagged amendments to individual flexibility agreement provisions, such as broadening their currently restricted scope, prompted by concerns that union action had limited their use.

As the Fair Work legislation entered its third year from July 2011 (after its initial introduction in July 2009), various tribunal decisions provided clarity about the nature and scope of the bargaining system. In what employers called the ‘strike first, negotiate later’ case, the TWU was successful in gaining a protected action ballot order despite the employer’s refusal to engage in bargaining ([2011] FWA 973). A Full Bench hearing the appeal by the employer, waste company J. J. Richards and Sons (joined by the Australian Mines and Metals Association), confirmed that the ‘absence’ of bargaining was not a barrier to the granting of the order if there had been a legitimate request for bargaining. The Full Bench argued that the onus fell on the union to demonstrate that it was genuinely trying to reach an agreement ([2011] FWAFB 3377). The next step for the employers was an appeal to the Federal Court. This was lodged in July and, at a hearing in October, a Full Court hearing date was scheduled for February 2012 (Federal Court of Australia File: VID812/2011).

It was not only Qantas unions that were confronted with a lockout, as the abolition of ‘proactive’ lockouts by the Fair Work Act 2009 has shifted employer action to ‘bargaining lockouts’ (Cooper et al., 2009: 346). The year began with the continuation of the Swift meatworks lockout, which had started in December 2010. Affecting 140 cold storage workers, the dispute was finally settled after nearly six weeks. Soon after, Carinya, an aged care provider in Perth, attempted to lock out its employees at two sites for a week, an action deemed illegal by FWA ([2011] FWA 797). When the Health and Community Services Union (HACSU) gave notice of work bans at a psychiatric prison hospital, custodial security guards were locked out by G4S and replaced with casuals (HACSU, 2011). In mid-December, Schweppes locked out 150 workers in response to increasing industrial action by United Voice over the introduction of new rosters (Skulley, 2011b). Again, the employer was unsuccessful in gaining termination of the union's industrial action ([2011] FWA 9329).

Remuneration Cases

There were mixed outcomes in two key cases before FWA: the ASU’s application for an Equal Remuneration Order and the first application for a Low Paid Bargaining Authorisation. Initial reactions to the equal pay decision on 16 May were positive, given the Full Bench’s finding that ‘gender has an important influence’ in the pay gap between social and community service sector workers and those doing comparable work in state and local government ([2011] FWAFB 2700, at 282). The ruling that proof of discrimination was no longer required underscored that the focus was now on undervaluation. This proved, however, to be just the first step, with the Full Bench seeking further submissions to clarify the impact of gender on wage growth in the sector and an appropriate remedy. Prime Minister Gillard’s announcement that the federal government was committed to funding equal pay was warmly welcomed, with the ACTU calling on state governments that had been equivocal to do likewise (see Baird, 2012, this issue).

The first Low Paid Bargaining Authorisation application, lodged by the United Voice union in 2010 to cover employees and employers in certain parts of the aged care sector, was successful. However, as it excluded employers already party to an enterprise agreement, this limited its scope to redress low pay overall in the sector ([2011] FWAFB 2633). United Voice’s National Secretary Louise Tarrant characterized it as an ‘impudent decision’ that ignored and disrespected low-paid workers and the aged (United Voice, 2011).

There was general union support for the decision in the Annual Wage Review 2010–2011. In response to the ACTU’s claim for a AUD$28 a week increase (and employer submissions to award increases between AUD$9.50 and AUD$14 per week), the FWA Minimum Wage Panel granted a wage increase of 3.4% affecting about 1.4 million award-reliant workers, increasing the federal minimum wage to AUD$589.30 (AUD$15.51 per hour). Justifying the increase, the Panel observed that ‘a significant increase is appropriate which will improve the real value of award wages and assist the living standards of the low paid’ ([2011] FWAFB 3400, at 334). The next Annual Wage Review will take place from March to June 2012.

ACTU and Union Matters

The ACTU’s campaigning focus, advocated by President Ged Kearney when she assumed her role, began to take shape in 2011. She used the forum of the National Press Club to release the ‘Working Australia Census’ findings, describing them as providing a ‘snap shot of working life in 2011’ for over 40,000 workers ‘from shop assistants to sky divers’ (ACTU, 2011a). Three groups of workers were identified as being under particular stress: the ‘Sandwich Generation’ (women aged 45–54 working full time with caring responsibilities for both children and elderly parents), the ‘Forgotten Blokes’ (men aged 45–64 looking for work) and ‘Insecure Youth’ (young workers under 25 years of age in low-paid, insecure jobs). Each of these reinforced or crystallized the policy direction previously identified by Kearney: insecure work and the challenges of the ageing population, as well as the perennial issue of reconciling work with care demands (Kearney, 2011).¹ Soon after, the ACTU launched its Secure Jobs, Better Future campaign on job security. Part of this was a national inquiry into the extent and impact of insecure work (casual, short- and fixed-term contracts, labour hire and contracting), chaired by former Deputy Prime Minister Brian Howe (Hannan, 2011d).

Relations with the Federal Government

Notwithstanding the ongoing commitment to keeping the federal Labor government in place, for the ACTU there remained a degree of frustration with the pace of policy implementation, in particular the slow progress on the commitment to abolish the Australian Building and Construction Commission (ABCC). On 3 November, the legislative move to a new regulator finally began. A new agency would replace the ABCC. Nonetheless, union concerns remained over the retention of coercive information-gathering powers previously exercised by the ABCC. Despite new safeguards, ongoing differential treatment for building and construction workers led Dave Noonan, CFMEU National Construction Secretary, to assert that the draft legislation did not go far enough. He reiterated that ‘The entire union movement has the view that coercive powers are unwarranted’ (Guest, 2011).

For both the unions and the federal government, ongoing job losses fuelled growing concern over the fate of manufacturing. In contrast to the booming resources sector, the high Australian dollar placed additional pressure on all aspects of manufacturing, from food processing to steel. BlueScope Steel’s restructuring decision to move out of steel exporting in August was at the expense of over 1100 jobs in the Illawarra, including 800 jobs at the Port Kembla steelworks, together with a further 200 jobs at Hastings in Victoria. The announcement led Paul Howes, Australian Workers Union National Secretary, to warn of ‘a major crisis’ facing manufacturing, as doubts were again cast over the future of the industry (Chambers and Kerr, 2011). Adding ‘salt’ to the ‘wounds’ was the news soon after of the payment of substantial bonuses to BlueScope Steel executives (Jacob, 2011). Manufacturing was, thus, one of the key areas debated at the federal government’s Future Jobs Forum (Scott, 2011). Outcomes of this summit included the establishment of a Manufacturing Taskforce (with the Prime Minister, Julia Gillard, as chair, and senior officials from the ACTU and five manufacturing unions, federal ministers, manufacturers, and academics) and a commitment to a ‘local content’ requirement for companies receiving more than AUD$20m in government grants (Carr, 2011; Willingham and Wroe, 2011).

Improving workers’ retirement income was a shared union–Labor Party goal in 2011. Building on the federal government’s commitment to increasing the superannuation guarantee from 9% to 12%, the unions’ Stand Up for Super campaign was launched in September with the aim of securing broad parliamentary support (ACTU, 2011b). But suggestions of a wages trade-off to secure improvements by parliamentarian (and former union leader) Bill Shorten raised concerns over the degree of that commitment. Superannuation was also on union bargaining agendas with the TWU, for example, having success in negotiating increased employer contributions at transport and logistics companies including Linfox, Toll and TNT.

Relations between the industrial and political wings of the labour movement came under scrutiny when internal matters within the Health Services Union (HSU), concerning its former National Secretary and current federal parliamentarian Craig Thomson, became public. As salacious allegations regarding the misuse of union funds dominated media stories, the minority status of the federal Gillard Labor government came under particular pressure as the opposition called for Thomson’s resignation, which would, in turn, lead to a hung parliament. Matters escalated as acrimonious divisions within the union, in particular between Kathy Jackson, National Secretary, and Michael Williamson, National President and HSU East General Secretary, played out publicly. Amid claims of corruption, a number of inquiries were commenced into the union’s affairs, including police investigations in two states. For the Labor Party, the repercussions included the HSU’s disaffiliation and Williamson standing down as both Labor national vice-president and NSW senior vice-president (in addition to his union positions) (McClymont and Preiss, 2011).

Occupational Health and Safety

The scourge of asbestos touched more unions in 2011, with teachers and police both at work and at home in government-provided residences being exposed to asbestos (Macdonald, 2011). The federal government’s ratification of the Convention concerning Safety in the Use of Asbestos was welcomed by the ACTU as ‘an important step in the ongoing efforts for an asbestos-free Australia’ (ACTU, 2011c). As James Hardie again planned to cut contributions to its Asbestos Injuries Compensation Fund in 2012, and the legal saga concerning the former directors moved to the High Court, unions warmly welcomed the Labor Party’s commitment at its National Conference to Australia leading the global push for an asbestos-free world (ACTU, 2011d).

Twenty Queensland construction sites fell silent in November following the death of a foreman, the second fatality in the industry in as many weeks and the twelfth in 2011 (compared with eight deaths for all of 2010). A CFMEU official said that the tradition of stopping work for a day after a work-related fatality ‘had been rekindled recently … because workers had been pushed to their limits’ (Nancarrow, 2011). Six fatalities in 11 days in Victoria prompted Dave Noonan, CFMEU National Construction Secretary, to highlight the importance of regulation: ‘What you need is a situation where workers feel empowered to refuse unsafe work and that is under serious pressure, including in the construction industry at the moment’ (ABC, 2011b).

By December, it was clear that the proposed 1 January 2012 start for the harmonized Occupational Health and Safety (OHS) laws would not happen. While Unions WA warned of the implications of the state government’s failure to legislate, the campaign by NSW unions and Unions NSW to maintain the unions’ right to prosecute (contrary to the Model Act) gained unexpected support from a coalition of minor parties in the NSW Upper House. Although there was some weakening of the provisions, the principle was upheld.

A decade-long campaign by the United Firefighters Union of Australia (UFUA) reached a historic point with the passage of the Fair Protection for Firefighters Bill in the federal parliament. Introduced by the Greens’ Adam Bandt, securing tripartite support and unanimously passed in both houses, this ‘presumptive’ legislation recognized certain occupational cancers, removing the onus from firefighters to prove that their cancer was work-related (UFUA, 2011). For the TWU, its Safe Rates campaign also saw a major development, with federal legislation for a Road Safety Remuneration Tribunal comprising FWA members and OHS experts introduced in November.

Unions and State Governments

In two states, changes of government altered the industrial landscape for public sector workers. After the Victorian Labor government’s defeat in November 2010 came, as widely anticipated, that of NSW Labor in March 2011. State governments by and large adopted a wage cap of 2.5% (well below the inflation rate) but variations appeared in the execution of that wage policy. Most significantly, the use of executive power to replace bargained industrial outcomes was adopted in NSW, as was previously seen in South Australia (SA) in 2010 (Brigden, 2011).

In NSW, the O’Farrell government immediately sought to place its mark on industrial relations, resulting in thousands of public sector workers rallying on the streets of Sydney. In contrast to the support offered in opposition to the previous government’s agreement with nurses that included a 9.7% increase over three years, other public sector workers were confronted with the state government seeking direct control over public sector wages and conditions, including leave entitlements (Smith, 2011). The wages policy required that any increases beyond 2.5% would be conditional on delivered (rather than planned) productivity increases (Nicholls, 2011). Implemented by regulation and binding the NSW Industrial Relations Commission (NSWIRC), this would in effect remove the capacity for bargaining.

In order to secure necessary crossbench support, the government unexpectedly agreed to exempt the police. As a consequence, the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 came into force on 17 June. Pressure on the government continued with a 24-hour strike on 9 September and a rally of 35,000, including firefighters, teachers (in defiance of an NSWIRC order), police officers, nurses, prison guards, public servants and Hansard reporters (Burke, 2011). Despite the mollification of the Police Association of NSW, conflict later arose over the government’s plans to reduce benefits under the Police Death and Disability scheme, leading to 5000 uniformed police officers and supporters marching on parliament.

In Victoria, in addition to setting the scene for later conflict with the public service, nursing and police unions by its universal wage offer of 2.5% in February, the Baillieu government focused on the building and construction industry. It announced a review of the code dealing with state-funded projects in June, in part responding to what it saw as the flow-on effect of the desalination agreement (Schneiders, 2011a). Soon after, Victorian CFMEU construction members endorsed an agreement with a 5% pay rise, increased superannuation and all overtime at double time (Schneiders, 2011b). Draft guidelines were released a few months later, with increased powers for workplace inspectors and the Victorian code of practice re-linked to the national code (Ferguson, 2011a).

Following bans on speeding fines and traffic infringement notices, the first, and substantial, shift in the Victorian government’s position came with the agreement reached with the Police Association (Victoria), which provided a 19% increase over four years. Not surprisingly, both the CPSU and Australian Nursing Federation (ANF) forecast sustained action in pursuit of their claims (Ferguson, 2011b). What followed was, like the Qantas action, unexpected.

The ANF’s key demands were protection and expansion of nurse–patient ratios and a wage increase comparable to the police deal. As the union waited for the state government to meet their demands before nurses commenced work bans, a leaked confidential cabinet document outlined the government’s consideration of a strategy to prevaricate during bargaining. This was to push the union into taking industrial action significant enough to create an environment to force an arbitrated settlement through FWA. Government plans to cut nurse numbers by making nurse–patient ratios ‘more flexible’ and replacing nurses with ‘health assistants’ added to the ANF’s anger over the pay offer, given their lack of pay parity with other states. Further aggravating the situation was the advice to hospitals by the Victorian Hospitals Industry Association (VHIA) about how to lock out nurses and bring in labour replacements (Green and Schneiders, 2011). When there was no shift in the government’s position despite further conciliation talks, members voted to begin their action, including the progressive closure of hundreds of beds.² Two days later, the VHIA, supported by the state government, applied to FWA for termination of the action under s. 424. Despite the ANF’s offer of consent arbitration, the case proceeded.

In this instance, after another lengthy hearing into the late hours of 16 November, the Full Bench suspended the protected action for 90 days to allow for ongoing conciliation. Faced with the ANF’s refusal to comply (until a state-wide members’ meeting on 21 November) and the VHIA’s request for further orders, FWA then ordered a stop to the action from 7.30 p.m. on 18 November until 12 December. Recourse to FWA now marked the government’s response to union action as, on the same day, the state government, on the basis of bans imposed by child protection workers, sought the suspension of industrial action by all 35,000 CPSU members. While the government and the CPSU reached a compromise allowing continuation of negotiations, the nurses’ – now unprotected – action continued despite threats of fines. Thousands of nurses in their red and white ‘Respect our Work’ T-shirts rallied in Melbourne before nurses finally complied with yet another FWA order and lifted the bans ([2011] FWAFB 8101). Against the backdrop of the ANF pursuing a Federal Court judicial review of the original FWA Full Bench suspension decision, negotiations again stalled, leading to FWA Commissioner Gooley suspending conciliation for two weeks in December ([2011] FWA 9068). Accusing the government of deliberately trying to provoke them into further industrial action so as to trigger arbitration, the ANF organized daily workplace community rallies at public hospitals. In another display of member anger, on 16 December, nurses voted at a mass meeting in support of mass resignations from mid-February should there be insufficient progress in negotiations (Hagan, 2011).

The prospect of Work Choices-style legislative change in Western Australia was averted after Premier Colin Barnett decided not to proceed with the implementation of the controversial 2009 Amendola review (Harvey, 2011). Commissioned by the Barnett government in 2009, the review of the state’s industrial relations system contained recommendations for individual agreements, changes to unfair dismissal provisions and restrictions on union right of entry and industrial action (Amendola, 2009). The union campaign ‘No WorkChoices in WA’ had reinforced the similarities with elements of Work Choices (O’Brien, 2011).

Conclusion

By the end of 2011, the federal government’s planned review of the Fair Work Act in January 2012 had taken on more significance, with the focus likely to be on good faith bargaining and industrial action. Welcome news for unions, despite employer pressure, was the then Workplace Relations Minister Chris Evans’ emphatic claim that ‘We are not going to [reintroduce individual agreements]. We are a Labor government, we think workers ought to have rights at work’ (Hepworth and Rintoul, 2011), as was the Labor Party’s endorsement of strengthening collective bargaining, including job security claims, at its National Conference.

Whether there will be a ‘Qantas’ effect fostering a new phase of employer militancy remains speculative. However, it does forecast a willingness on behalf of some employers to look for the opportunities offered by arbitration when confronted with union demands perceived to impinge on managerial prerogative, such as outsourcing and use of contractors and labour hire. This turn to arbitration, previously decried by them (Hearn Mackinnon, 2009), but clearly now a tool in the employers’ arsenal, shifted the rhythm and tenor of bargaining for unions. The outcome of legal challenges by the pilots’ and nurses’ unions will be keenly awaited by unions and employers alike.

Footnotes

Funding

This research received no specific grant from any funding agency in the public, commercial or not-for-profit sectors.

Notes

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