NEW LABOR LAW FULFILLS CAMPAIGN PROMISE

UNCLAS SECTION 01 OF 03 CANBERRA 000305 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PGOV ELAB AS SUBJECT: NEW LABOR LAW FULFILLS CAMPAIGN PROMISE REF: A) 08 CANBERRA 182 B) 08 CANBERRA 1222 C) CANBERRA 285 ¶1. (SBU) SUMMARY: On March 20, the Australian Senate passed the Rudd Government's new labor law, undoing substantial sections of the unpopular "WorkChoices" legislation introduced by former Prime Minister John Howard. While Deputy Prime Minister and Workplace Relations Minister Julia Gillard had to accept some minor amendments, the Fair Work Bill passed by the Parliament was essentially what she had introduced last November 25. Although the Opposition and business criticized the provisions that increased union rights of entry and expanded protections against dismissal, the Government prevailed because it had campaigned heavily against WorkChoices and could claim an election mandate. The unions are generally pleased with the outcome, since it gives them more access to worksites and the bargaining table. This law is only one step back toward labor market regulation, after 20 years of deregulation. Separate from the Fair Work Bill, the Government's new awards - which are baseline conditions that cover employees in a particular industry - could raise employment costs and dampen renewed hiring as much if not more than the new legislation. END SUMMARY A MAJOR VICTORY FOR GILLARD AND ALP ¶2. (U) A major reason Prime Minister Kevin Rudd and the Australian Labor Party (ALP) won the 2007 federal election was the public's perception that John Howard's workplace relations laws, enacted in 2005 and known as "WorkChoices," were too pro-business and unfair to workers, particularly those with little or no bargaining power. The first bill introduced into Parliament by the Rudd Government in 2008 was called "Transition to 'Forward with Fairness'." Passed last March (ref A),it abolished AWAs - Australian Workplace Agreements, which are individual workplace contracts favored by WorkChoices that were seen by the unions and the public as symbols of an unfair law. The Fair Work Bill 2008, which is the principal piece of legislation, revises the Howard Government's workplace relations laws. This bill was introduced last November (ref B). ¶3. (SBU) Gillard worked hard to craft a bill that would be broadly accepted. She consulted broadly with business and labor in drafting the legislation but the drafting was essentially a political exercise, not an academic one. Two of the most eminent labor law experts in Australia told us that they were not consulted. At the end of the process, however, both the unions and business (albeit less so) were reasonably satisfied with the result. ¶4. (U) When the Government introduced the Fair Work Bill, Opposition Leader Malcolm Turnbull said he accepted that voters had rejected the Howard Government's industrial relations laws and declared that WorkChoices was dead. Since November, however, the worsening economy and the increase in unemployment have led business groups and some in the media to question whether this is the best time to reduce labor market flexibility. Also, Turnbull was pressured by the Right Wing of his Liberal Party to take a harder line against the bill. In the end the Liberal-National Party Coalition opposed the Government by not supporting the bill's definition of small business for the purpose of unfair dismissal, but it never in fact voted against the bill as a whole. ¶5. (U) Gillard needed the five Green Party senators and the two independents to pass the law in the Senate. The Greens Qtwo independents to pass the law in the Senate. The Greens backed the bill, but the independents held out for a definition of small business for unfair dismissal purposes that encompassed more small businesses. Gillard refused to yield, and in the end, she only accepted an 18 month transition period before the Government's definition took effect (ref C). The Greens told us later that the independent senators could not risk being branded as the reason the bill ending WorkChoices failed. THE NEW LAW ¶6. (U) Fair Work Australia, which will take effect on July 1 2009, is more fully described in ref A and at www.workplace.gov.au. In general, it will: - Create "Fair Work Australia", an agency which will absorb the functions of the independent Industrial Relations Commission, plus all current government agencies (the Workplace Authority, the Workplace Ombudsman and Employment Advocate). This provision was initially criticized for combining regulatory and judicial authorities under one roof, CANBERRA 00000305 002 OF 003 however, the idea seems to have gained acceptance. - Provide ten national employment standards (covering things like minimum wage and working conditions),which will provide the basis for a "modern" industry award system. - Give unfair dismissal protection for all workers. If the employer has fewer than 15 employees, it has a year before unfair dismissal protection applies. Where there are more than 15 employees, unfair dismissal rights accrue after six months. Until January 1, 2011, small business means 15 full-time employees. Thereafter it will be 15 total employees. - Require "good faith bargaining", which includes requirements that employers hold meetings at reasonable times, and respond to proposals in a timely manner. - Allow unions to enter worksites containing no union members, provided at least one employee approves this. Business complained that this would be an invasion of privacy, particularly if there were no union employees. The Government amended the bill to provide that a union official (who first must obtain a permit from Fair Work Australia) may only inspect an employee's records if it does not otherwise violate privacy laws. The bill will also give Fair Work Australia the power to prevent union turf wars by picking one union to attempt to organize a new workplace. -Allow multi-employer bargaining. As is the case under WorkChoices, legal industrial action by unions will be unavailable in this situation. -Make compulsory arbitration available to low-paid workers negotiating multi-employer agreements. WORKCHOICES LITE ¶7. (SBU) A leading left-wing academic on workplace relations issues in Australia told us that he thought this law incorporated many of the changes introduced by WorkChoices in 1996, and that it was, as some critics suggested, "WorkChoices lite." Industrial action by unions was still strictly limited, he noted. Business may be complaining bitterly about increased union right of access to worksites and employee records but this was a provision with a long history in Australian labor relations. The regulatory authorities rely on the unions to uncover potential breaches of employment conditions. A key change, he pointed out, is the proposal to combine the industrial relations tribunal with the regulatory body in order to create "one-stop shopping" and a more informal dispute resolution mechanism. NATIONAL "MODERN" AWARDS TO REPLACE STATE SCHEMES ¶8. (SBU) As part of Labor's election campaign platform, it promised to modernize and simplify awards, which are baseline conditions covering an industry. As part of the transitional bill, the Government directed the Industrial Relations Commission to create national "modernized" awards, replacing existing state awards in January 2010. Proposed new awards have now been announced for the restaurant and retail sectors and business is warning about a rise in costs. In the restaurant industry, according to John Hart, the head of Restaurant and Catering Australia, restaurants in different states worked under different awards and the process of creating one nationwide award is raising costs particularly in states like South Australia which had significantly lower award rates. Hart noted that one new award provision, for example, provides that all employees who work after 7pm must receive a 10% penalty bonus. This effectively raises costs for the entire industry. Gillard's office told us that the transitional bill also contains provisions that enable Fair Qtransitional bill also contains provisions that enable Fair Work Australia to phase in the new awards over a five-year period. WILL SMALL BUSINESS START HIRING AGAIN? ¶9. (SBU) COMMENT: The ALP consulted business in drafting the legislation but it's fair to say the unions were the real winners. The ALP has paid back the unions for their significant role in bringing down the Howard Government. Symbolically, Gillard sat with Greg Combet, the former national secretary of the Australian Council of Trade Unions, to watch the final Senate vote approving her bill. Ironically, while the Rudd Government had a clear electoral mandate to replace WorkChoices, the risk for it now is that the new law will raise employment costs and discourage hiring, particularly by small business. The Government sees CANBERRA 00000305 003 OF 003 this new industrial relations scheme as national in scope, replacing the myriad state laws and awards still in place. Gillard is having trouble, however, persuading some states, and New South Wales in particular, to adopt Fair Work Australia. RICHE