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Enterprise Bargaining as a Tool to Reduce Regulatory Layering: A Content Analysis Study

Published online by Cambridge University Press:  01 January 2025

Carolyn Sutherland
Carolyn Sutherland*
Affiliation:
Ethical Business Regulation Group, Monash Business School, Monash University
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Abstract

This article assesses whether Australia's system of enterprise bargaining has helped to streamline workplace relations rules by replacing overlapping industrial instruments with a single enterprise agreement. It presents empirical findings from a content analysis study of enterprise agreements made in the higher education and fast food sectors between 1993 and 2011. These findings suggest that there has been a remarkable shift over time in the contribution of enterprise agreements to the problem of regulatory ‘layering’. Whereas the majority of early agreements exacerbated the problem by inserting new arrangements on top of existing industrial instruments, more recent agreements have tended to replace multiple instruments with a single agreement. The empirical findings also point to various ways in which legislative reforms and funding incentives have contributed to this shift towards greater simplicity in the workplace relations system.

Type
Article
Information
Federal Law Review , Volume 42 , Issue 3 , September 2014 , pp. 559 - 588
Copyright
Copyright © 2014 The Australian National University

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Footnotes

My thanks go to Richard Mitchell, Anthony Forsyth, Chris Arup, Richard Johnstone and Andrew Stewart for their close engagement with the ideas presented in this paper and their insightful responses to earlier material that provided the foundation for this paper. I am also grateful to the anonymous referees for their helpful insights.

References

1 For a detailed account of the policy of simplicity in the context of enterprise bargaining, see Sutherland, Carolyn, ‘Mapping Complexity in Australian Enterprise Agreements: A Multi-Dimensional Approach’ (2013) 26 Australian Journal of Labour Law 50.Google Scholar

2 These four analytical constructs are drawn from Schuck, Peter H, ‘Legal Complexity: Some Causes, Consequences, and Cures’ (1992) 42 Duke Law Journal 1, 5.CrossRefGoogle Scholar

3 For an overview of the larger study, see Sutherland, ‘Mapping Complexity’, above n 1; for an analysis of the findings in relation to the first of the constructs (technicality), see Sutherland, Carolyn, ‘The Elusive Quest for Simplicity: Measuring and Assessing the Readability of Enterprise Agreements, 1993 to 2011’ (2013) 35 Sydney Law Review 349.Google Scholar

4 Schuck, above n 2, 4.

5 Ibid.

6 See, eg, Mitchell, Richard et al, ‘What's Going on with the “No Disadvantage Test”? An Analysis of Outcomes and Processes Under the Workplace Relations Act 1996 (Cwlth)’ (2005) 47 Journal of Industrial Relations 393CrossRefGoogle Scholar; Gahan, Peter et al, ‘Regulating for Performance? Certified Agreements and the Diffusion of High Performance Work Practices’ (Paper presented at the Australian Labour Law Association Second National Conference, Sydney Law School, 24–25 September 2004)Google Scholar; Fetter, Joel and Mitchell, Richard, ‘The Legal Complexity of Workplace Regulation and its Impact upon Functional Flexibility in Australian Workplaces’ (2004) 17 Australian Journal of Labour Law 276.Google Scholar

7 Dickens, Linda, Hall, Mark and Wood, Stephen, ‘Review of Research into the Impact of Employment Relations Legislation’ (Department of Trade and Industry Employment Relations Research Series No 45, London, 2005) 32Google Scholar; Arup, et al, ‘Assessing the Impact of Employment Legislation: The Coalition Government's Labour Law Programme 1996–2007 and the Challenge of Research’ (Research Report, Workplace and Corporate Law Research Group and Australian Centre for Research in Employment and Work, Department of Management, Monash University, 2009) 29.Google Scholar

8 Arup et al, above n 7, 29. See, eg, Mitchell, Richard et al, ‘The Evolution of Labour Law in Australia: Measuring the Change’ (2010) 23 Australian Journal of Labour Law 61.Google Scholar

9 In particular, this is the problem of horizontal layering. It is contrasted with vertical or parallel layering which refers to the problem of overlapping rules applying at a workplace due to the application of both federal and state regulation: see Bray, Mark and Waring, Peter, ‘“Complexity” and “Congruence” in Australian Labour Regulation’ (2005) 47 Journal of Industrial Relations 1, 7–8.CrossRefGoogle Scholar The latter issue has been addressed to some extent by the enactment of the FW Act and the referral to the Commonwealth of industrial relations powers by all states except Western Australia in 2009: see Sutherland, Carolyn and Riley, Joellen, ‘Industrial Legislation in 2009’ (2010) 52 Journal of Industrial Relations 275, 285–6.CrossRefGoogle Scholar However, overlapping federal and state rules continue to regulate certain key matters, such as equal opportunity and workplace health and safety.

10 Bray and Waring, above n 9, 8.

11 See Sutherland, ‘Mapping Complexity’, above n 1 .

12 With respect to awards, see Paul Keating, ‘Speech to the Institute of Company Directors’ (Melbourne, 21 April 1993) 12; John Howard, ‘Workplace Relations Reform: The Next Logical Step’ (Speech delivered at the Sydney Institute, Sydney, 11 July 2005) 8; Andrew Robb, ‘Workplace Reform: From Keating to Howard’ (Speech delivered at the Institute of Public Affairs, Melbourne, 20 September 2005) 12. With respect to earlier enterprise agreements, see Department of Employment, Workplace Relations and Small Business (Cth), ‘Policy Parameters for Agreement Making in the Australian Public Service’ (Workplace Relations Advice No 8 of 1999, May 1999) 1; Department of Employment and Workplace Relations (Cth), ‘Supporting Guidance for the Workplace Relations Policy Parameters for Agreement Making in the Australian Public Service’ (June 2004) 13; Peter Reith, ‘Towards A Best Practice Australian Public Service’ (Discussion Paper, November 1996).

13 These problems have been identified in scholarship relating to unregistered collective agreements made during the Work Choices period: Stewart, Andrew and Riley, Joellen, ‘Working Around Work Choices: Collective Bargaining and the Common Law’ (2007) 31 Melbourne University Law Review 903Google Scholar; and to statutory individual agreements (Australian Workplace Agreements) made under the 1996 WR Act: Fetter, Joel and Mitchell, Richard, ‘The Legal Complexity of Workplace Regulation and its Impact upon Functional Flexibility in Australian Workplaces’ (2004) 17 Australian Journal of Labour Law 276, 296.Google Scholar

14 Department of Employment, Workplace Relations and Small Business (Cth), ‘Australian Public Service Advice 04 of 1998 Attachment B’ (1998).

15 Reith, Peter, ‘Flexibilities Available in Agreement-making’ (Ministerial Discussion Paper, Department of Employment, Workplace Relations and Small Business, May 1998) 9.Google Scholar

16 Ibid (emphasis added).

17 Sloan, Judith, ‘The Economic Implications of Enterprise Bargaining’ (1993) 4 Economic and Labour Relations Review 27.CrossRefGoogle Scholar

18 See pt III below.

19 Although an equivalent test was included in the 1992 IR Act, it should be noted that the test was not known as the ‘no disadvantage test’ until the 1993 IR Act: see Merlo, Omar, ‘Flexibility and Stretching Rights: The No Disadvantage Test in Enterprise Bargaining’ (2000) 13 Australian Journal of Labour Law 207, 210–35.Google Scholar

20 Commonwealth, Parliamentary Debates, House of Representatives, 26 February 1992, 264–70 (Paul Keating). The importance of employee protection was also emphasised by the Minister for Industrial Relations in the Second Reading Speech to the Industrial Relations Reform Bill 1993: Commonwealth, Parliamentary Debates, House of Representatives, 28 October 1993, 2777–8 (Laurence Brereton).

21 Bray and Waring, above n 9, 3–4.

22 For a discussion of the effectiveness of the ‘no disadvantage test’, see Mitchell et al, above n 6.

23 See Robb, ‘Workplace Reform: From Keating to Howard’, above n 12.

24 Ibid.

25 These requirements were released by the Government on 29 April 2005: Brendan Nelson and Kevin Andrews, ‘Modernising Workplace Relations in our Universities’ (Joint Media Release, 29 April 2005). The requirements were subsequently included in the Commonwealth Grants Scheme Guidelines made under s 238.10 of the Higher Education Support Act 2003 (Cth): Amendment No 5 to the Commonwealth Grant Scheme Guidelines, F2005L03802 (26 November 2005) 7.25 (‘Commonwealth Grant Scheme Guidelines’). See also Howe, John, ‘“Money and Favours”: Government Deployment of Public Wealth as an Instrument of Labour Regulation’ in Arup, Chris et al (eds), Labour Law and Labour Market Regulation (The Federation Press, 2006) 167, 174–6Google Scholar; van Barneveld, Kristin, ‘AWAs in Universities’, 51(1) Journal of Industrial Relations 59CrossRefGoogle Scholar; Rosewarne, Stuart, ‘Workplace ‘Reform’ and the Restructuring of Higher Education’ (2005) 56 Journal of Australian Political Economy 186, 196–7.Google Scholar

26 To qualify for a funding increase in 2006, universities were required to have in place enterprise agreements which complied with the HEWRRs by 30 November 2005: Commonwealth Grant Scheme Guidelines, above n 25, 7.20.05. Where a University had in place an enterprise agreement that was not due to expire until 1 October 2005 or later, the University was permitted to implemented the HEWRRs through workplace policies and practices: at 7.20.10.

27 The HEWRRs were removed from the Commonwealth Grant Scheme on this date: Amendment No 2 to the Commonwealth Grant Scheme Guidelines No 1, F2008L00559 (23 February, 2008). Subsequently, references to the HEWRRs and National Governance Protocols were formally removed from the Higher Education Support Act 2003 (Cth) with effect from 20 September 2008.

28 Higher Education Support Act 2003 (Cth) s 33–15.

29 All higher education providers were assessed by the Government as compliant with the HEWRRs as at 31 August 2007: Department of Education, Employment and Workplace Relations, ‘Higher Education Report 2007’ (2008) 8.

30 Ibid.

31 Commonwealth Grant Scheme Guidelines, above n 25, 7.25.25.

32 The test was subsequently re-named the ‘better off overall test’ with effect from January 2010. For a more detailed analysis of this reform, see Sutherland, Carolyn, ‘Making the ‘BOOT’ Fit: Reforms to Agreement-Making from Work Choices to Fair Work’ in Stewart, Andrew and Forsyth, Anthony (eds), From Work Choices to Fair Work (Federation Press, 2009) 99.Google Scholar

33 These amendments were contained in the Industrial Relations Legislation Amendment Act 1992 (Cth).

34 This article does not make reference to the amendments made to the FW Act by the Fair Work Amendment Act 2012 (Cth) since the enterprise agreements that formed part of the empirical study were made prior to these amendments taking effect.

35 These amendments were contained in the Industrial Relations Reform Act 1993 (Cth).

36 The 1996 WR Act was created when the 1993 IR Act was amended and renamed by the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) (‘WROLA Act’).

37 These reforms were introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) which amended the 1996 WR Act.

38 These amendments were contained in the Workplace Relations Amendment (A Stronger Safety Net) Act 2007 (Cth) (‘Stronger Safety Net Act’).

39 These amendments were contained in the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) (‘Transition Act’).

40 1992 IR Act s 134L(1)(a). It should be noted that, with each major reform, statutory collective agreements were given a new name. These names included ‘certified agreement’, ‘enterprise flexibility agreement’, ‘collective workplace agreement’, ‘greenfields agreement’ and ‘enterprise agreement’. To maintain consistency, ‘enterprise agreement’ will be used throughout this article as a generic term to describe all of these different forms of agreement. The term refers to a collective agreement made at the enterprise level and registered with the relevant authority pursuant to the relevant workplace relations legislation applying at the time.

41 1992 IR Act ss 134J, 148.

42 1993 IR Act ss 170MK(1)(a), 170NL(1)(a).

43 Ibid ss 170MI(1)(c), 170NJ(1)(c).

44 Ibid ss 170MK(1)(b), 170NL(1)(b).

45 1996 WR Act ss 170LY(1), 170LZ(1). Under these provisions, the agreement also prevailed over State agreements and State laws. However, there were certain matters in State laws, such as occupational health and safety protections, which could not be overridden by the provisions of an enterprise agreement: see 1996 WR Act ss 170LZ(2)–(3).

46 Ibid s 170LX.

47 Ibid s 170LY(2).

48 An award had no effect in relation to an employee while an enterprise agreement operated in relation to that employee: 2005 WR Act s 349. This rule was intended to encourage the parties to make comprehensive agreements rather than relying on awards and agreements simultaneously: see Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) 166, [968].

49 2005 WR Act s 354(2). The exception was outworker conditions, which could not be excluded by an enterprise agreement: s 354(3).

50 Except to the extent that the awards contained protected award conditions: see 2005 WR Act ss 349, 399(1)(3)(b).

51 2005 WR Act s 348(1).

52 Ibid s 348(3).

53 Ibid.

54 Ibid s 347(5).

55 Ibid s 347(8).

56 With the exception of provisions relating to outworkers: 2008 WR Act s 349(2).

57 The Transition Act repealed s 399 of the 2005 WR Act and 2007 WR Act. This section had operated to extinguish awards once they had been replaced by enterprise agreements.

58 FW Act s 57. The exception is outworker terms in an award, which are not displaced by the agreement: s 57A.

59 Ibid ss 206(1)–(2). Similarly, if the employer is required to pay an employee based on a national minimum wage order, the agreement wage rate will be ineffective to the extent that it falls below the national minimum wage rate: FW Act ss 206(3)–(4).

60 Ibid s 58.

61 As set out above, outworkers provisions in the award were an exception to this rule: see above nn 56 and 58. Minimum wages in the award were an exception to this rule under the FW Act: see above n 59 and accompanying text.

62 For further detail about the content analysis methods used in the study, see Sutherland, ‘Mapping Complexity’, above n 1 , 56–59.

63 For example, an award might still ‘apply’ in a technical legal sense for the purpose of determining whether certain statutory rights take effect at a particular workplace, but where the terms of the award themselves did not need to be consulted to determine conditions of employment at the workplace, then the award was not taken to ‘apply’ as a continuing regulatory layer for coding purposes. For example, in the case of CFMEU v Ensham Resources Pty Ltd (2004) 133 IR 137, the Federal Court confirmed that where an enterprise agreement purports to exclude the award, then the award no longer determines wages and other conditions of employment at the particular workplace: at [15]. However, the case also establishes that the award may have some continuing legal effect in establishing statutory entitlements (such as union rights of entry). For our purposes, in such a case, the award is no longer a relevant ‘layer’ that must be consulted according to our concepts of ‘differentiation’ and ‘displacement’.

64 For example, where an agreement is silent with respect to the displacement of awards, the coding framework ensures that the agreement is coded as displacing awards if the agreement was made after March 2008 (when the Labor Government's transitional legislation commenced operating), and as allowing awards to continue operating during earlier legislative periods, reflecting the interaction rules in the legislation.

65 For a detailed outline of the coding framework that was used for the study, see Carolyn Sutherland, ‘Complexity and Simplicity in Australian Enterprise Agreements: Coding Framework, List of Agreements and Chi Square Tables’, Workplace and Corporate Law Research Group Working Paper No 20, Monash University September 2013.

66 For details about the reasons for selecting these two sectors for this study, see Sutherland, ‘The Elusive Quest for Simplicity’, above n 3, 361–362.

67 The first enterprise agreement made in the higher education sector commenced operating on 28 April 1993 and the sampling frame includes all agreements made by higher education institutions registered up to 30 September 2011. The first enterprise agreement made in the fast food sector commenced operating on 3 May 1994 and the sample includes agreements made up to and including 8 March 2011. This earlier end date was selected for the fast food sample since this allowed a sufficient number of agreements to be coded for the year 2011 (14 agreements in total), and for the period of the FW Act (189 agreements). In contrast, the end date needed to be extended to 30 September 2011 in the higher education sector in order to obtain a sufficient number of agreements for each of these categories.

68 The full sample of 8 agreements could be retained without distorting the data for this legislative group, 1994–1996. This is a small number and, as set out below, the outcomes must be treated with caution.

69 The random sample was generated using the sampling function in Microsoft Excel. Random sampling was used as the next best option after stratified sampling by employer size. Stratified sampling was not possible since the size of the employer's business was not publically available for all agreements in the sampling frame for the fast food sector.

70 This is indicated by the chi-square tests which are reported in the notes to Figures 2, 3, 5 and 6 below.

71 As set out in Table 1, in the higher education sector, 3 agreements were made in 2007 and 1 agreement was made in 2008. In the fast food sector, 3 agreements were made in 1994 and in 1995 and 2 agreements were made in 1996. No agreements were made in the fast food sector in 1993.

72 For the Higher Education Agreements database: χ2(3) = 179.58, p < 0.001; for the Fast Food Agreements Database 2, χ2(2) = 7.819, p < 0.05.

73 See above n 71 and accompanying text.

74 See above n 23 and accompanying text.

75 The exception is the statutory rule with respect to ‘protected award conditions’ under the Work Choices legislation. This rule overrode the explicit intentions of the parties to displace an award unless the agreement expressly removed or modified all ‘protected award conditions’: see above n 49 and accompanying text.

76 The template was adopted in 31 per cent of agreements made in the period 2003 to 2004.

77 Clause 2 of this agreement stated: ‘Protected Allowable Award Matters are as defined in Section 354 of the Act, and include provisions of the Award dealing with rest breaks, incentive based payments and bonuses, annual leave loading, State and Territory specific public holidays, allowances, loadings for overtime and shift work, penalty rates, outworker conditions and any other matter specified in the Regulations.’

78 This refers to whether or not the agreement is considered a ‘union’ or a ‘non-union’ agreement. Under the 1992 IR Act, all enterprise agreements were made with unions, whereas the 1993 IR Act introduced a non-union agreement option, which was regulated by specific rules in the legislation. The distinction between union and non-union agreements then remained in place until the enactment of the FW Act. From 1 July 2009, the FW Act abolished any formal distinction between union and non-union agreements. However, unions were permitted to be involved in the bargaining process and could apply to Fair Work Australia (‘FWA’) to be bound by an agreement. For the sake of the empirical study, agreements made under the FW Act are taken to be union agreements where one or more unions are bound by the agreement, whereas under earlier legislation, a union needed to be a party to an agreement for it to be classified as a union agreement.

79 χ2(1) = 4.4, p < 0.05.

80 Justine Evesson et al, ‘Lowering the Standards: From Awards to Work Choices in Retail and Hospitality Collective Agreements’ (Report to the Queensland, New South Wales and Victorian Governments, September 2007) 18.

81 See above nn 19–22 and accompanying text.

82 Two agreements made in 1993 explicitly displaced earlier enterprise agreements, which had been made in the same year to address structural inefficiencies imposed by the award. A further six agreements made in 1993 were silent on this issue and were therefore deemed to displace any (expired) earlier enterprise agreements based on the statutory interaction rules in the legislation: see above n 64. In practice, there may not have been any earlier enterprise agreements in existence that were displaced by these statutory interaction rules.

83 χ2(3) = 92.775, p < 0.001.

84 See above pt III. The 2005 WR Act also ensured that a new enterprise agreement did not come into effect until the existing enterprise agreement had expired, providing greater clarity than earlier rules that allowed an earlier unexpired agreement to overlap with the new agreement: see above n 52 and accompanying text.

85 χ2(1) = 36.1, p < 0.001.

86 See above pts II and III.

87 See above n 23 and accompanying text.

88 See above nn 19–20 .

89 See Sutherland, ‘Mapping Complexity’, above n 1 , 73–4; Sutherland, ‘The Elusive Quest for Simplicity’, above n 3, 376.

90 Dunoff, Jeffrey, ‘Linking International Markets and Global Justice’ (2009) 107 Michigan Law Review 1039, 1057.Google Scholar

91 Howe, John, ‘Government as Industrial Relations Role Model: Promotion of Collective Bargaining and Workplace Cooperation by Non-Legislative Mechanisms’ in Creighton, Breen and Forsyth, Anthony (eds), Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective (Routledge, 2012) 182, 200.Google Scholar

92 See above n 30 and accompanying text.

93 McCrudden, Christopher, Buying Social Justice: Equality, Government Procurement and Legal Change (Oxford University Press, 2007) 119.CrossRefGoogle Scholar

94 This trend was not observed in the fast food sector.

95 This is acknowledged by Schuck, above n 2 , 21.

96 Bray and Waring point to some examples of layering where there is no incongruence because the multiple layers ‘fit together’, such as the traditional payment of the minimum wage in the award supplemented by over-award payments. However, they note that incongruence subsequently developed between the layers because of the way over-award payments were used to press for unsustainable increases in the minimum wage: above n 9, 8–9.