PM - Tuesday, 22 November , 2005 18:14:00 Reporter: Stephen Long MARK COLVIN: One of the concerns that critics have raised about the Workplace Relations legislation is its potential to shift bargaining power from employees to employers.
As PM reported last week, when an existing workplace agreement expires, an employer will be able to terminate it and place employees instead on five basic conditions.
Some legal experts say that the planned law would also make the right to strike meaningless.
Stephen Long reports.
STEPHEN LONG: There's a rush on by unions to get enterprise agreements in place wherever they can.
And the reason why is clear: once the new IR laws take force, collective bargaining is going to be hard-going for unions and their members and it's going to be much, much harder to go on strike.
ANTHONY FORSYTH: They make the capacity to take lawful strike action so limited, the window so small, that the rights are virtually meaningless.
STEPHEN LONG: Dr Anthony Forsyth from the Department of Business Law at Monash University.
It's a view widely shared by legal experts, including one of the nation's foremost legal scholars, Professor Andrew Stewart of Flinders University.
ANDREW STEWART: Under the bill, we will have a situation where the right to take industrial action will virtually have been reduced to, to nothing.
STEPHEN LONG: The main reason legal experts say the right to strike will exist virtually in name only is because it will be so easy to stop strikes, sue unions and void the legal protection given to employees for industrial action.
That's if they can get industrial action authorised in the first place.
It's well known the new laws require a secret ballot for industrial action; perhaps less well known that calling the ballot won't be an automatic right.
A union must first seek permission from the Industrial Relations Commission and the employer can oppose the ballot going ahead, claiming the union hasn't "genuinely tried" to reach an agreement.
If the union does win the right to hold a vote, it generally has to be a postal ballot conducted by the Electoral Commission and gaining a "yes" to industrial action won't be easy. Half the eligible members at the workplace must vote, and that level of participation in voluntary postal votes isn't common.
If a strike is authorised, there are numerous parties who can have it halted. Even Kevin Andrews.
ANDREW STEWART: Whenever the Minister is personally satisfied – and it's a matter for his complete discretion – whenever he's personally satisfied that some action is causing significant harm to the economy or a section of the economy, then he can make a declaration which brings that action to an end and indeed prevents any further lawful action taking place.
STEPHEN LONG: Andrew Stewart.
Critics such as Dr Anthony Forsyth at Monash University say giving the Minister this kind of power could give rise to perceptions of political favouritism.
ANTHONY FORSYTH: So this could result in significant politicisation of industrial disputes.
STEPHEN LONG: One of the problems for unions is that if a strike is effective, it's likely to be stopped.
Aside from Kevin Andrews, the employer can seek a "cooling off" period because the strike's causing it harm, and a host of third parties can also have industrial actions suspended or terminated.
Andrew Stewart:
ANDREW STEWART: Any third party who's been damaged or harmed in some way by industrial action, and it's very rare that industrial action doesn't hurt somebody other than its intended target.
If you had schoolteachers on strike it would mean students or parents of students could take that action.
If you had health workers, then patients or, you know, people associated with patients.
In the manufacturing industry, other businesses who're relying on the products being made at that particular employer could go to the commission and ask for the action to be suspended.
STEPHEN LONG: And the right to strike can be terminated if employees or unions seek an agreement which includes so-called "prohibited content", with the Workplace Relations Minister free to decide what's prohibited as he sees fit.
And, there are numerous other ways under the Work Choices Bill that unions and their members can lose their legal protection for strike action, including, ironically, if workers who aren't members of the union take part in the strike: a situation that industrial relations barrister Tony Slevin says is bizarre.
TONY SLEVIN: For the union to suffer the consequences, the legal consequences that may arise in these circumstances at the behest of someone else, who have nothing to do with them, it's just an oppressive law.
STEPHEN LONG: The Government will no doubt be hoping its new bill deters industrial action.
But it's possible some unions will simply move outside the formal system and wage wildcat strikes.
PM understands that unions have already commissioned legal advice on how to get around the laws.
Proposals include deregistering and forming shell companies stripped of assets that could be folded if they were hit by damages claims for illegal industrial action.
MARK COLVIN: Stephen Long
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