Unions and collective bargaining in Australia in 2020

Abstract

The sudden and dramatic lockdowns in Australia resulting from the COVID-19 pandemic brought great uncertainty and much change during 2020. This review concentrates on the impacts of these contextual changes on Australian unions and collective bargaining. Union efforts to cooperate with governments in policy-making and with employers at a workplace level were greeted with applause. But other arenas, as the crisis moderated, saw more traditional adversarialism. In particular, the failure of the parties to agree on legislative change meant that the government’s ‘omnibus’ bill, presented to parliament in December, would prove controversial and strongly contested in the new year. The structure and process of collective bargaining seemed to change remarkably little in 2020. A closer examination of the practice and outcomes of collective bargaining, however, suggests continued difficult times for workers and unions.

Keywords

Collective bargaining cooperation enterprise agreements Fair Work Act industrial disputes union membership unions wages

Introduction

Early in 2020, unions and collective bargaining in Australia appeared likely to continue as they had ended the previous year. However, the onset in March of the COVID-19 crisis changed all that. The sudden and dramatic lockdowns that followed brought great uncertainty and at least temporary pain, and profoundly changed most people’s working lives. The longer-term impacts remain unclear.

This review concentrates on the immediate impacts of these contextual changes on Australian unions and collective bargaining as well as monitoring more ‘business as usual’ elements of the topic. The first main section shows surprisingly little change in union membership or shape. The second section demonstrates two sides of the union strategy coin: on one side, leading national debates on pay and conditions in a pandemic, in tri-partite consultation with government and business; on the other side, running (and rebutting) adversarial campaigns on specific issues such as wage theft, health and safety and superannuation. The third major section of the review shows the formal collective bargaining institution was surprisingly unaffected by the pandemic. However, our selective account of trends in some industries suggests greater change at a more disaggregated level. Finally, renewed efforts to reform legal regulation of collective bargaining through government-sponsored working groups led, very late in the year, to a bill being presented to parliament.

What the story of unions and collective bargaining in Australia in 2020 does show is that unions took a much more active and cooperative role than in recent years in debating and resolving national challenges on issues affecting workers. However, cooperation was often at risk of being shallow and relatively short-lived, declining when the most urgent elements of the crisis subsided and as employers and government retreated to more adversarial positions.

Unions and the shape of the union movement

In a speech on 2 December 2020, Australian Council of Trade Unions (ACTU) Secretary Sally McManus claimed that ‘nearly every union has seen growth in membership in 2020’ (McManus, 2020a). New biennial estimates of union membership as of August 2020 (ABS, 2020a) recorded total union membership as 1,492,300 and union density as 14.3%. Both numbers were down slightly from the same time 2 years earlier (1,534,400 and 14.6%). Without data on any membership fluctuations between August 2018 and December 2020 when the ACTU Secretary delivered her speech, both could be right.

The official data indicated important differences between groups. Density varied according to gender, with female membership at 15.9% and male membership at 12.7% (ABS, 2020a). This confirmed a continuing trend towards the feminisation of the Australian union movement. The three industries with highest union density were: Education and Training (31%), Public Administration and Safety (28%) and Health Care and Social Assistance (24%). The three occupational groups with highest density were: Professionals (21%), Community and Personal Service Workers (18%) and Machinery Operators and Drivers (17%).

The future shape of unions – in terms of types of unions and their membership base –unexpectedly became an issue late in the year. This was stimulated by internal conflict within the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), a union never far from controversy. Unhappiness among leaders of the non-construction sections of the union with the leadership of the construction group, especially with John Setka, led to the resignations of, first, the union’s national president, Tony Maher, from the mining division; and then the national secretary, Michael O’Connor, from the manufacturing division (Grattan, 2020; Marin-Guzman, 2020a). Unusually, given their past antagonism, it was reported that the two union leaders had subsequent discussions with Industrial Relations (IR) Minister Porter (Marin-Guzman, 2020b). United against Setka, legislation allowing unions to de-amalgamate [the Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Act] quickly passed parliament in December, supported by the Australian Labor Party (ALP) (Marin-Guzman and Coorey, 2020). Whether the new facilitating laws will produce the break-up of large conglomerate unions like the CFMMEU remains to be seen (Workplace Express, 2020a, 2020b).

Union strategy

Union strategy during 2020 saw twists and turns at different levels, driven by the complexities and uncertainties of the times.

National

The pandemic altered the government’s traditionally adversarial approach to union-government relations (e.g. Porter, 2020a; see also Peetz et al., 2020) and unions also demonstrated a desire to contribute cooperatively to dealing with the threat, mostly through support for temporary measures (in legislation, awards and sometimes collective agreements) designed to facilitate flexible employment arrangements whilst also protecting workers (Forsyth, 2020a; Marin-Guzman, 2020c; Workplace Express, 2020c).

The federal government – first through IR Minister Porter and later Prime Minister Morrison – responded to union cooperation positively, praising union leaders and even withdrawing the ‘Ensuring Integrity’ bill as a sign of good faith (Workplace Express, 2020d). Mainstream media outlets were quick to hail the increasingly close relations between Minister Porter and ACTU Secretary McManus (e.g. Coorey, 2020) and the new cooperation generally (Hutchens, 2020), although other commentators were more cautious (Forsyth, 2020b; Grenfell, 2020).

One of the ACTU’s most successful initiatives focused on persuading the government to introduce wage subsidisation. In early March, the ACTU called for a wage subsidy to keep workers in their jobs (ACTU, 2020); and in mid-March, McManus criticised the government’s proposal to move workers onto existing unemployment benefits (McManus, 2020b). At first publicly disinclined, by the end of March, in the face of overwhelming business, union and public support for a more interventionist strategy, the federal government introduced a ‘JobKeeper’ allowance and increased the unemployment benefit (the ‘JobSeeker’ allowance) (McManus, 2020c, 2020d). Throughout the year, unions continued to argue for improvements to and extension of JobKeeper, to propose that access to employment flexibilities remain limited, and to advocate other ways to build employment, such as free childcare and increased training (Hannan, 2020).

A range of other provisions were implemented, often very quickly, with cooperation from unions (Forsyth, 2020c). The JobKeeper legislation included some changes to employment arrangements, like opportunities to reduce working hours. Key awards were quickly varied by the Fair Work Commission – with the support of unions, employers and government – to facilitate flexibilities to employment arrangements, working from home and leave arrangements as well as introducing pandemic leave entitlements (see FWC, 2020a). However, over time, unions and employers began to advocate conflicting positions on issues like extending workplace flexibility provisions, introducing paid pandemic leave and unilateral wage freezes in the public sector (Forsyth, 2020c).

Three high-profile strategic issues in Australia not directly linked to the COVID-19 crisis provide insight into union strategy: wage theft, climate change and industry superannuation.

Unions continued to pursue employers for non-compliance with awards and enterprise agreements – an issue they preferred to call ‘wage theft’ (Clibborn, 2020). An example was in the university sector, where the National Tertiary Education Union (NTEU) expanded its wage theft campaign over alleged underpayment of casual, sessional academic and contract staff. Referrals were made to the Fair Work Ombudsman and the union set up a Wage Theft Investigation website and associated survey, soliciting claims (Workplace Express, 2020e). Some universities responded with statements that any underpayments were neither intentional nor systematic, and committed to rectification where appropriate (Workplace Express, 2020f). Others disputed the union’s claims, leading to case-by-case investigations and/or negotiations (e.g. Duffy, 2020).

In a year that started with terrible bushfires, and in which many jobs were lost, arguments about energy and jobs, and climate change and how to address it, were sometimes polarised. For example, some officials in the CFMMEU’s Energy and Mining Division argued that the ALP’s policies on climate change were ‘anti-jobs’ because of their alleged impact on the traditional energy sector (Brown, 2020a, 2020b). Others, including the Electrical Trades Union (ETU) (Bonyhady, 2020) and the ACTU, argued that any simple ‘pro-jobs versus anti-jobs’ argument was a false dichotomy. There were some constructive developments. One example was the Hunter Jobs Alliance (O’Malley, 2020), established by the NSW Australian Manufacturing Workers’ Union (AMWU), the NSW ETU, the Labor Environment Action Network and environmental groups. Launched in November, the group sought to build on a long history of cooperation in the Hunter (Bray et al., 2017: Chapter 6) and ‘end the failed “jobs versus environment” dynamic that is holding the region back’ (Hunter Jobs Alliance, 2020).

Another national debate in which unions participated was on superannuation, and in particular the mandate for and regulation of industry super funds, which unions oversee in partnership with business. Industry super funds have been at the forefront of so-called ‘green bans’ on old-economy energy companies. Members of the government sought to limit the influence of industry super funds in several ways. They legislated to allow members to access their funds during the pandemic (Wright, 2020). They proposed legislation to slow the growth of compulsory employer contributions and to limit the ways in which members’ funds could be used (Duke, 2020), and sought to force financial institutions, including super funds, to reverse their divestment strategy on sectors like coal-fired power (O’Malley and Foley, 2020). Unions responded by calling on members of parliament, directly and through their stakeholders and constituents, to resist these changes.

Industry and enterprise

At industry and enterprise levels, the strategies of individual unions varied, again reflecting both cooperation and adversarialism (Forsyth, 2020a). For example, the effects of the pandemic on the university sector began to hit home in February/March as international students were not able to enter Australia. Despite the rapid move to online teaching, universities’ heavy reliance on international student fees for research and other activities caused them to seek substantial savings. National officials and elected state and territory representatives of the NTEU, along with a group of Vice-Chancellors (VCs) ostensibly supported by the Australian Higher Education Industry Association, negotiated a National Jobs Protection Framework (Barnes, 2020; NTEU, 2020a). The framework proposed a single variation to all enterprise agreements, to provide an integrative solution to the challenges facing the sector. Universities would be required to open their books and to guarantee job security for ongoing staff, in exchange for agreed time-limited trade-offs, such as wage restraint or purchase of leave (Workplace Express, 2020g).

However, there was resistance from many VCs and their University Councils, reluctant to relinquish managerial prerogative or believing they could find a better solution (Campus Morning Mail, 2020; Workplace Express, 2020h). There was also resistance from the Community and Public Sector Union (CPSU) and some university and state branches of the NTEU, who were committed to ‘fightback’ rather than what was characterised as ‘concession bargaining’ (NTEU, 2020b). A version of the framework was implemented in a few universities, but most took a different route such as staff redundancy and early retirement schemes. Union branches were left to respond as best they could in each separate enterprise.

In a very different sector, the newly-formed United Workers’ Union worked cooperatively with employers and governments to vary awards and enterprise agreements to provide greater flexibility, especially in the early stages of the COVID-19 crisis (Forsyth, 2020a). It also adopted more traditionally adversarial actions, like strikes and media/lobbying initiatives, in support of workers in laundries, warehouses and aged care facilities as they responded to employers on issues like health and safety, working hours and work intensification.

Collective bargaining and collective agreement making

Official data on collective bargaining and collective agreements in 2020 was only available up to the end of June. That data suggest only modest change from 2019: a slight decline in the incidence and coverage of collective agreements; a slight increase in non-union collective agreements (NUCAs); and continuing, if sporadic, examples of cooperative bargaining. There was also a further deterioration in wage growth; and continued historically low levels of industrial disputation. Our account of collective bargaining and agreements across a range of industries, however, points to greater change and more diverse processes than the official data¹ suggest.

Incidence and coverage of collective agreements

The overall trend in collective bargaining shows that a rise in the number and coverage of collective agreements in 2019 was followed by a decline in the first half of 2020. This creates two uncertainties. First, was the decline in the first half of the year caused by temporary factors (especially responses to COVID-19), by cyclical trends resulting from the expiry in 2020 of agreements mostly of 3 years duration approved in 2017 or by longer-term structural factors associated with barriers to bargaining created by the Fair Work Act? Second, will a greater decline be revealed in the data for the second half of 2020?

The number and coverage of federally-registered current agreements remained the more stable measure of collective bargaining (see Figure A1 in supplemental material online). At the end of the June quarter of 2020, there were 10,701 current agreements, which was broadly similar to all quarters since the second half of 2018. The coverage of current agreements stood at 2,156,600 employees by the end of the June quarter – a slight decline on recent quarters, but still well above aggregate coverage before mid-2019 (see Figure A3 in supplemental material online).

The number and coverage of new agreements told a slightly different story. After peaking in mid-2019 at over 1500 per quarter, the total number of new agreements approved in the June quarter of 2020 fell to just 762. The total coverage of these new agreements was more variable across quarters, the lowest being 142,600 employees in the June quarter of 2020 (see Figure A2 in supplemental material online).

The significance of the quarterly (and even annual) figures, however, should be kept in perspective because the number and coverage of collective agreements remain at historic lows. Moreover, the future of collective bargaining remains unclear because the long-term impacts of the COVID-19 pandemic and future changes to the Fair Work Act were unknown at the time of writing.

NUCA making

Making and approval of collective agreements without the involvement of unions continued to be an unusual aspect of collective bargaining in Australia (Bray et al., 2020). Evidence on the incidence and coverage of these NUCAs from the Workplace Agreements Database (AGD, 2020b) suggests they remained an important industrial instrument over the year.

With respect to new agreements, the number and coverage of newly-approved NUCAs increased slightly compared to all agreements. For example, while the number of NUCAs approved in 2019–2020 decreased from 1156 to 1048, NUCAs as a percentage of all agreements rose over the same period from 25% to 26%. The coverage of NUCAs fell from 39,400 employees in 2018–2019 to 34,400 in 2019–2020, but their coverage as a percentage of all agreements stayed broadly the same at 5%.

The data on current agreements offer a similar picture. Both the incidence and coverage of NUCAs declined between the June quarters of 2019 and 2020: by 7% in number and 8% in coverage, similar to declines for union agreements. So, NUCAs remained at 34% of all current agreements in both periods, while current NUCAs fell in coverage from 6% of the total to 5% (AGD, 2020b: Table 14).

Both new and current NUCAs consistently operated for a longer duration than union agreements, at 3.7 years compared to 3.1 years respectively for new agreements in the June quarter of 2020. They also delivered lower wage increases than union agreements (see more detail below, in wage outcomes): 2.6% in new NUCAs in the June quarter of 2020 compared to 3.1% for union agreements.

Wage outcomes

Wage outcomes during the year continued to be meagre. In the year to September 2020, the Wage Price Index (WPI) rose by only 1.4% (ABS, 2020b), compared with increases of 2.2% and 2.3% over the same periods for 2019 and 2018 respectively (see Figure A4 in supplemental material online). This dips below the previous lowest annual rate growth recorded in the September quarter 2017 (2.0%). Within these aggregate numbers, annual wage growth to the September quarter 2020 ranged from 0.5% for the ‘Accommodation and food services’ and ‘Administrative and support services’ industries to 2.4% for the ‘Financial and insurance services’ and ‘Education and training’ industries. The highest wage growth through the year was in South Australia with a rise of 1.8%, while Victoria recorded the lowest rise of 1.2%. The disparity between the states in the September 2020 quarter no doubt reflected COVID-19 restrictions in Victoria and the easing across the majority of other states (ABS, 2020b).

The traditional gap between wage increases delivered through collective agreements and the generalised numbers reported in the WPI appeared to widen. The average annualised wage increase (AAWI) over the 2019–2020 financial year in both newly approved and current enterprise agreements, for example, remained around 2.6–2.7% (AGD, 2020b). Remarkably, the AAWI for new private-sector agreements in the first two quarters of 2020 climbed to 2.9 and 3.0, compared to increases in public-sector agreements of only 2.3 and 2.2 respectively (AGD, 2020b). The private-sector increases, however, may have been unduly influenced by the high percent of agreements not reporting quantifiable increases (AGD, 2020b) and are likely to be much reduced in later periods. Wage freezes in both state and federal public sectors will also reduce wage outcomes later in the year (Jenkins, 2020).

Industrial disputes

Industrial disputes are defined by the ABS as ‘a state of disagreement over an issue or group of issues between an employer and its employees, which results in employees ceasing work’, and are recorded at or above a total of 10 working days lost (WDL) (2020c).² In the year to September 2020, industrial disputes decreased significantly compared to the previous year. While this no doubt indicates the impact of the pandemic, it also continued the long-term trend of very low levels of disputation (see Figure A5 in supplemental material online). There were only 82 industrial disputes reported in Australia over the 2019–2020 year. This was considerably fewer than the previous year (163 disputes) and remained below the average for the previous decade. These disputes involved 29,500 WDL, which is 64% less than that reported for the same period last year. The number of employees involved in disputes was 16,900, which was again significantly less than the previous year’s total of 72,200 employees. The data show that industrial disputes in 2020 were on average shorter and involved fewer workers: their average duration was 0.99 days (compared with 1.4 days in 2019 and 1.78 days in 2018); and they involved 206 workers (compared with 443 workers in 2019 and 284 workers in 2018).

Developments in three contrasting industry sectors

Despite contextual imperatives and some attempts to develop more centralised bargaining structures, collective bargaining in Australia remained highly decentralised. The year saw diverse experiences of collective bargaining across industries, and even across enterprises in the same industry. This section describes bargaining in three very different unionised sectors – airlines, mining and universities.

Airlines

In March 2020, Australia’s largest airline, Qantas, was the first major employer in the country to instigate large-scale employee stand-downs in response to COVID-19 (Forsyth, 2020d) and further stand-downs and redundancies followed in later months (Khadem, 2020a). At the time, Qantas was negotiating with two unions over three key enterprise agreements: clerical employees, short-haul pilots and long-haul pilots. In the first of these, negotiations with the Australian Services Union (ASU) regarding clerical workers appear to have been postponed, presumably because of COVID-19. However, both pilot agreements were renewed and approved by the Fair Work Commission (FWC), albeit in different ways. The short-haul agreement was finalised between management and the Australian and International Pilots Association (AIPA) in April 2020, after 18 months of negotiations. The long-haul agreement was more controversial as the successful negotiation of the agreement was crucial to the airline’s plans for ultra-long-haul flying, known as Project Sunrise. Qantas terminated discussions with AIPA in February after negotiations stalled and took the vote directly to the pilots. Management issued an ultimatum to the pilots to vote for the agreement, or it would set up a separate ‘employment entity’. The agreement was approved by the majority of pilots by the end of April (Hatch, 2020). As the fallout from COVID-19 continued, however, most long-haul pilots were stood down indefinitely and Project Sunrise was put on hold.

Meanwhile, Virgin Australia was fighting for survival. After several years of financial difficulties, the impact of the pandemic sent it into voluntary administration on April 21. On September 4, Bain Capital, a US-based private equity firm, was announced as the new owner (Khadem, 2020b). Jayne Hrdlicka was later installed as chief executive. Hrdlicka had previously worked at Qantas and was involved in the airline lockout in 2011, before becoming the CEO of low-cost offshoot Jetstar (Boyd, 2020). Virgin revealed its plans to streamline operations and, according to the ASU, to implement ‘dramatic and permanent’ cuts to employee conditions (Workplace Express, 2020i).

Despite this tumultuous start, Virgin Australia and most of its unions seemed to turn this toxic relationship around. By early December 2020, and contingent on crucial management assurances not to outsource jobs and to continue with their hybrid business strategy, unions (namely, the Transport Workers’ Union (TWU), Flight Attendants Association of Australia, the Association of Licensed Aircraft Engineers of Australia and the ASU) agreed to pay freezes for up to 2 years under a number of newly-negotiated in-principle enterprise agreements (Workplace Express, 2020j). Reminiscent of the old ‘single bargaining unit’ days at Qantas, the TWU said the unions formed one overarching group that met regularly. At the time of writing, however, the airline could not come to agreement with its two pilot unions, Virgin Independent Pilots Association and the Australian Federation of Airline Pilots, and decided unilaterally to take proposed ‘agreements’ to the pilot workforce (Workplace Express, 2020j).

Qantas management is, of course, watching developments at Virgin with intense interest and the CEO has made clear his intention to match any productivity improvements and cost savings agreed to in the revamped Virgin Australia (Workplace Express, 2020j). More broadly, events at both airlines represent a reminder that, at almost every stage of the agreement-making process, the Fair Work Act allows employers to go ‘over the head’ of unions to the workforce when they are dissatisfied with the outcome of negotiations (see Chaudhuri and Sarina, 2018).

Mining

Similar practices were evident in an ongoing battle between BHP and the unions, especially the CFMMEU, over enterprise agreements in the mining industry. In 2018, BHP established an in-house labour-hire company to act as an employing entity (namely, BHP Operations Services Pty Ltd) and submitted to the FWC two proposed non-union enterprise agreements (OS MCAP Pty Ltd maintenance agreement and OS ACPM Pty Ltd production agreement). The union claimed that, like most labour-hire arrangements in mining, the agreements substantially under-cut wages and conditions compared to workers undertaking the same tasks under union agreements (Whelan, 2020: 16). BHP management countered, arguing that most comparisons ignored the benefits gained by workers due to permanent employment and the provision of entitlements like parental and annual leave (Workplace Express, 2020k).

After considerable delays, the enterprise agreements were approved by a single member of the FWC in December 2019, but the CFMMEU appealed. In May 2020, a Full Bench upheld the appeal on multiple grounds, mostly procedural. The company subsequently offered undertakings that would have resolved some issues, but could not convince the Full Bench that managers had taken reasonable steps to explain to workers the effects of the proposed agreements (Workplace Express, 2020l). The year ended with the union offering to negotiate new agreements and BHP declining the offer, preferring to deal directly with the workforce, ‘seeking employee feedback’ on what they called two proposed ‘safety net agreements’ (Workplace Express, 2020m, 2020n).

Universities

Australia’s collective bargaining system remains stubbornly decentralised, demonstrated by developments within the university sector (see above). The failure of industry-wide coordination meant that the widespread restructuring, job losses and cost-cutting were implemented in a different way at each of the 40-odd universities around the country (Forsyth, 2020a).

The dynamics of the process at The University of Newcastle provides one example. In mid-2020, the university forecast lost revenue in 2021 of $58 million, to be recovered if it was to avoid borrowings or losses. It was proposed that some $20 million could be achieved by short-term measures and the rest by more significant change (Zelinsky, 2020a). Management initially engaged in discussions with the NTEU and CPSU over these more significant changes, involving proposals such as the postponement of various salary increases via variations to the enterprise agreement, or proposals outside it, such as the taking of accrued leave, reductions in course offerings, organisational restructuring and reduced capital spending. The VC set a deadline for concluding discussions. The local NTEU branch responded by insisting that the university meet three conditions: submit information about the university’s financial situation to an external panel for verification; guarantee security of employment; and ensure that changes to conditions would be temporary (NTEU, 2020c). When agreement was not forthcoming by the nominated date, the university abandoned its proposals related to salaries, arguing – unlike some other employers – that taking variations to the enterprise agreements to staff without union support would be ‘fraught’ and would ‘create even more angst and risk[ed] being divisive’ (Gregory, 2020). Instead, it embarked on cost-cutting measures that management could implement unilaterally without varying the agreement (Zelinsky, 2020b).

Cooperative collective bargaining

Despite the serious health and economic challenges of the COVID-19 pandemic, some parties to collective bargaining nevertheless continued their conscious and long-term efforts to develop cooperative relationships, under the FWC New Approaches practice (FWC, 2020b). For example, the Association of Children’s Welfare Agencies (the NSW peak body representing around 70 non-government community organisations delivering services to vulnerable children, young people and their families) and Aruma (a national provider of disability services) developed and implemented adjustments in employment, working hours and remuneration to respond to their changed circumstances. Endeavour Energy and its unions were able to negotiate a new redundancy policy to replace the previous no-forced-redundancy and salary maintenance policies contained in the 2017 enterprise agreement (Endeavour Energy, 2018). Working under a Section 739 matter, the FWC facilitated an interest-based approach to negotiation, which included a non-binding recommendation accepted by the parties.

Consistent with the broader theme of this article, however, cooperation was often at risk of being shallow and relatively short-lived. As some of the most urgent elements of the crisis subsided, happening more quickly in some states and in some sectors, and as the longer-term impact of COVID-19 became clearer, cooperation subsided. A good example was a New Approaches file established between the AMWU Printing Division and Ovato, the large printing and media organisation. Early cooperative discussions about adjusting hours produced agreement, but as the volume of work declined, management went to the union anticipating redundancies and proposing to pay less than the rates contained in the enterprise agreement. Subsequently, management apparently became frustrated about progress and unilaterally sought termination of agreement. Management then announced redundancies via a transfer of on going employees to a new corporation (see Robinson, 2020; Workplace Express, 2020o). Controversially, this left around 300 redundant employees to recover entitlements under the Fair Entitlements Guarantee Act (Workplace Express, 2020p, 2020q).

The Fair Work Commission’s New Approaches programme saw continued modest business. There were 15 new files commenced during the year. There was also a well-attended online symposium in October, with practitioner-presented case studies, academic commentary and insights from international experts (FWC, 2020b). The year also saw some significant changes. In November, the programme’s long-serving head (Deputy President Anna Booth) retired from the commission, to be replaced as National Practice Leader by Vice President Joe Catanzariti. The name of the programme also changed to ‘Cooperative Workplaces’, with the first file using the new CW nomenclature in December 2020.

The law and collective bargaining

The Australian preoccupation with the law, rather than the behaviours of the parties, as the cause (and solution) of problems in collective bargaining continued. The early months of 2020, characterised by massive uncertainty resulting from the COVID-19 pandemic and unusual cooperation between the national parties, saw some rapid (albeit mostly temporary) changes to the regulation of collective bargaining (for an exception, see Workplace Express, 2020r, 2020s).

In May, Prime Minister Morrison and IR Minister Porter sought more permanent changes to Australia’s labour laws, instigating what they called a ‘problem-solving’ project. This was the Coalition government’s first serious attempt to change these laws since the Work Choices amendments of 2005 – amendments widely seen within the government ranks as a radical and failed experiment, not to be repeated (Kelly, 2020). The new approach involved establishing five multi-party working groups, each addressing a specific issue:

award simplification,

enterprise agreement making,

casual and fixed-term employment,

greenfields projects and

compliance and enforcement in areas such as wage underpayment.

Minister Porter later said there was: ‘a lot of accord on problems, but “imperfect” agreement on solutions’ (Workplace Express, 2020t). Membership of the working groups was unsurprising, each comprising 10 principal members, mostly from national employer associations, individual employers, the ACTU and individual unions, supplemented at times by evidence from invited external experts (Workplace Express, 2020u).

It was the processes by which the working groups were to operate that was most interesting and arguably innovative. When announcing the project, the Prime Minister claimed to be relatively open-minded and interested in taking forward an agenda after a ‘genuine course of negotiation and compromise and cooperation’ focused on helping business create jobs (Workplace Express, 2020d). The government had, he said, ‘booked the room’, ‘hired the hall’ and ‘got the table ready’ to facilitate cooperative interactions between the parties (Workplace Express, 2020d). Moreover, the participants were obliged to maintain confidentiality, in an attempt to promote a genuine exchange of ideas (Workplace Express, 2020u). All this apparently worked quite well, with the Minister later observing that he was: ‘quite amazed at the level of good faith, the discipline, the abiding by the rule of keeping matters discussed in the room in the room’ (Workplace Express, 2020t). There were predictions of some good agreed outcomes and better relationships in the future.

There was some cynicism from the start, that the problem-solving project was a clever, ‘no-lose’ strategy by the government (Workplace Express, 2020c). Agreement between the parties in the working groups would produce reforms easily accepted by parliament and might even improve the system, while disagreement would allow the government to propose the reforms it (and its employer supporters) wanted, while being able to argue that unions were recalcitrant.

Whatever the intent, by September, it was clear that there would be little agreement in any of the working groups, especially after a compromise proposal submitted by the ACTU and the Business Council of Australia to the enterprise bargaining working group was roundly rejected by other employer associations (Workplace Express, 2020v), and the government was anticipating its own ‘omnibus’ bill (Workplace Express, 2020f). Subsequent commentary confirmed the ‘lack of consensus’ (Stanford, 2020).

The government’s omnibus bill (i.e. the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020) was introduced to parliament on 9 December (Parliament of Australia, 2020). It was almost immediately moved to an inquiry by the Education and Employment Legislation Committee, due to report by March 2021.

The proposals in the omnibus bill broadly corresponded to the issues raised in the working groups. The most relevant to collective bargaining related to enterprise agreement making and greenfield projects. With respect to the former, the IR Minister claimed they were ‘the one aspect of the current system for which the problems are most acute’ and that the government’s aim was to: ‘increase the number of Australians covered by enterprise agreements – and the productivity and wage benefits they can entail – by making agreement-making and approval processes easier and faster for employers and employees, while ensuring a better balance between flexibility and fairness’ (Porter, 2020b).

The proposed changes to the Better Off Overall Test (BOOT) raised the most immediate and negative response from unions and the Opposition ALP, rapidly leading to Minister Porter offering to reconsider (see Hannan, 2020).

Beyond the BOOT, further reforms were largely consistent with employers’ proposals. As Professor David Peetz mused:

The main complexity in the enterprise bargaining system is the barriers put to unions seeking agreements. The bill addresses none of these, instead aiming to make non-union agreements easier to make. Nor does it address how an agreement with a few employees can deny the rights of a whole workforce, employed later. They lose all rights to negotiate through industrial action. Ironically, in other industrialised countries, non-union agreements are impossible anyway. (Peetz, 2020)

On greenfield projects, unions and employers seemed to agree that some changes were needed to extend the length of agreements to cover the whole length of large projects. There were, however, significant differences over the appropriate time period (unions apparently accepting an extension from 4 to 5 years, while the bill supported the employers’ preferred 8 years) and the threshold to be deemed an appropriate project (unions preferring $5 billion versus the bill’s much lower figures of $0.5 billion, and even $250 million where the Minister deems the project nationally or regionally significant) (Workplace Express, 2020w).

The government claimed the reforms contained in the bill were ‘not ideologically based’ but founded on ‘a series of practical, incremental solutions to key problems’ (Porter, 2020b). Conservative commentators were at pains to argue that they were indeed modest (e.g. Hewett, 2020; Kelly, 2020). One critic, however, saw the modesty of the proposals as a negative because it ‘… snuffed out hope that the government wanted to do something more than tinker around [and] keep employer groups happy’ (Carney, 2020). Others saw the reforms as driven almost completely by the demands of employers (Peetz, 2020; Stanford, 2020).

Conclusion

The uncertainty and disruption created by the COVID-19 pandemic offered Australian unions opportunities for increased membership and greater input into national policy-making and employment arrangements at industry and enterprise levels. Unions generally accepted these opportunities and, by year’s end, the ACTU Secretary claimed that unions were again seen as ‘trusted social partners’ of business and government (McManus, 2020d). The return of employers and the federal government to more traditionally adversarial ways, however, makes this conclusion difficult to sustain. A similar theme emerged with respect to collective bargaining. It could have provided an effective and even cooperative mechanism to deal with the challenges of a difficult year, and the formal measures of Australia’s collective bargaining system suggest some success. However, employer agendas seem to focus more on narrowing collective bargaining and introducing change unilaterally, and legislative proposals revealed at the end of the year suggest that the federal government supports them.

Supplemental Material

sj-pdf-1-jir-10.1177_00221856211003597 - Supplemental material for Unions and collective bargaining in Australia in 2020

Supplemental material, sj-pdf-1-jir-10.1177_00221856211003597 for Unions and collective bargaining in Australia in 2020 by Mark Bray, Johanna Macneil and Leslee Spiess in Journal of Industrial Relations

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iDs

Mark Bray

Johanna Macneil

Supplemental material

Supplemental material for this article is available online.

Notes

Biographical notes

Mark Bray is Emeritus Professor at The University of Newcastle. His research interests include cooperation at work, the role of industrial tribunals, collective bargaining and awards.

Johanna Macneil is Dean of the School of Management and Professor of People, Organisation and Work at RMIT University. She has applied and academic interests in cooperative change at work, collective bargaining and soft regulation of industrial relations.

Leslee Spiess completed her PhD in the Newcastle Business School at The University of Newcastle. She currently teaches comparative employment relations systems and her research interests include the structures and processes of labour regulation, management strategy and employee representation.

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