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From ‘Uncharted Seas’ to ‘Stormy Waters’: How Will Trade Unions Fare under the Work Choices Legislation?

Published online by Cambridge University Press:  01 January 2023

Anthony Forsyth  and
Carolyn Sutherland
Anthony Forsyth
Affiliation:
Department of Business Law and Taxation, Faculty of Business and Economics, Monash University
Carolyn Sutherland
Affiliation:
Department of Business Law and Taxation, Faculty of Business and Economics, Monash University
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Abstract

The 2005 ‘Work Choices’ legislation builds on earlier legislative and policy measures of the Howard Coalition Government that have restricted the activities and undermined the traditional legal rights of unions. This article highlights the key aspects of the 2005 legislation affecting trade unions. The constitutional basis of the new framework for regulating registered organisations is considered, as it presents unions with the challenge to revisit the validity of their registration under Federal law or to ‘opt out’ of registration altogether. The new union ‘right of entry’ provisions provide employers with far greater scope to resist or limit unwanted union influence at the workplace. Amendments to the freedom of association ‘provisions will restrict unions’ capacity to engage in a range of tactics to support the collective representation of workers’ interests, and limit their ability to block de-unionisation or individualisation strategies by employers. We conclude that the 2005 Act constitutes the most serious threat to Australian unions yet, but that the high-profile debate generated by the reforms, and the erosion of conditions which will inevitably follow for some workers, provide opportunities for unions to re-establish their relevance and reverse declining membership levels.

Type
Work Choices: A Critical Analysis
Information
The Economic and Labour Relations Review , Volume 16 , Issue 2: Work Choices: A Critical Analysis , May 2006 , pp. 215 - 236
Copyright
Copyright © The Author(s) 2006

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References

Anderson, K. and Ramsay, I. (2005) From the Picketline to the Boardroom: Union Shareholder Activism in Australia, Research Report, Centre for Corporate Law and Securities Regulation and Centre for Employment and Labour Relations Law, University of Melbourne.Google Scholar
Auerbach, S. (1990) Legislating for Conflict, Clarendon Press, Oxford.Google Scholar
Australian Bureau of Statistics (‘ABS’) (1983–1986) Trade Union Members, Australia, Canberra, 6325.0.Google Scholar
ABS (1994–2004) Employee Earnings, Benefits and Trade Union Membership, Australia. Canberra, 6310.0.Google Scholar
ABS (2005) Employee Earnings, Benefits and Trade Union Membership, Australia. Canberra, 6310.0.Google Scholar
ACTU (1999) Unions@Work: The Challenge for Unions in Creating a Just and Fair Society.Google Scholar
ACTU (2003) Future Strategies: Unions Working For A Fairer Australia (May 2003), [Online], Available: http://www.actu.asn.au/public/papers/Organising.html [accessed 8 May 2003]Google Scholar
ACTU (2005) ‘Submission to the Senate Employment, Workplace Relations and Education Legislation Committee Inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005’ (11 November 2005).Google Scholar
Coulthard, A. (1999) ‘The Decollectivisation of Australian Industrial Relations: Trade Union Exclusion under the Workplace Relations Act 1996 (Cth),’ in Deery, S. and Mitchell, R. (below), pp. 48–68.Google Scholar
Creighton, B. and Stewart, A. (2005) Labour Law, 4th edition, The Federation Press, Sydney.Google Scholar
Combet, G. (2005) Industrial Relations: Give Workers a Genuine Choice, Speech to the Australian Industry Group, 23 August 2005.Google Scholar
Cooper, R (2003) ‘Trade Unionism in 2002’ Journal of Industrial Relations, 45: 205–223.CrossRefGoogle Scholar
Cooper, R (2004) ‘Trade Unionism in 2003’ Journal of Industrial Relations, 46: 213–226.CrossRefGoogle Scholar
Cooper, R. (2005) ‘Life in the Old Dog Yet? ‘Deregulation’ and Trade Unionism in Australia,’ in Isaac, J. and Lansbury, R. (Eds), Labour Market Deregulation: Rewriting the Rules, The Federation Press, Sydney, pp. 93–106.Google Scholar
Crosby, M. (2005) Power at Work: Rebuilding the Australian Union Movement, The Federation Press, Sydney.Google Scholar
Deery, S. and Mitchell, R. (Eds) (1999) Employment Relations: Individualisation and Union Exclusion — An International Study, The Federation Press, Sydney.Google Scholar
Deery, S. and Walsh, J. (1999) ‘Union Decline in Australia: The Role of Human Resource Management Practices and the Union-Hostile Workplace’, Australian Journal of Labour Law, 12: 21–31.Google Scholar
Ewing, K. (2005) ‘The Function of Trade Unions’, Industrial Law Journal, 34: 1–22.CrossRefGoogle Scholar
Explanatory Memorandum, Workplace Relations Amendment (Work Choices) Bill 2005 (Cth).Google Scholar
Ford, W. (2000) ‘Being There: Changing Union Rights of Entry Under Federal Industrial Law’, Australian Journal of Labour Law 13: 1–27.Google Scholar
Forsyth, A. (1999) ‘Proposals for Statutory Union Recognition Rights in Britain and Implications for Australia,’ 12: 32–42.Google Scholar
Forsyth, A. (2000) ‘Trade Union Regulation and the Accountability of Union Office-Holders: Examining the Corporate Model, Australian Journal of Labour Law, 13: 28–49.Google Scholar
Forsyth, A. and Sutherland, C. (2006) ‘Collective Labour Relations Under Siege: The Work Choices Legislation and Collective Bargaining’ Australian Journal of Labour Law (forthcoming).Google Scholar
Frazer, A. (1995) ‘Trade Unions under Compulsory Arbitration and Enterprise Bargaining,’ In Ronfeldt, P. and McCallum, R. (Eds), Enterprise Bargaining, Trade Unions and the Law, The Federation Press, Sydney, pp 52–83.Google Scholar
Gittins, R. (2005) ‘Are the unions up to the IR challenge?’, The Age, 6 July 2005.Google Scholar
Gollan, P. and Patmore, G. (Eds), Works Councils in Australia: Future Prospects and Possibilities, The Federation Press, Sydney.Google Scholar
Howard, J. (2005) ‘Prime Ministerial Statement: Workplace Relations, Parliament of Australia’, Commonwealth Parliamentary Debates, House of Representatives (26 May 2005).Google Scholar
Howe, J. (2005) ‘Deregulation’ of Labour Relations in Australia: Toward Command and Control, Working Paper No. 34, Centre for Employment and Labour Relations Law, University of Melbourne.CrossRefGoogle Scholar
McCallum, R. (2002) ‘Trade Union Recognition and Australia's Neo-Liberal Voluntary Bargaining Laws’, Relations Industrielles, 57: 225–251.CrossRefGoogle Scholar
Naughton, R. (1997) ‘Sailing into Uncharted Seas: The Role of Unions Under the Workplace Relations Act 1996 (Cth)’, Australian Journal of Labour Law, 10: 112–132.Google Scholar
Nolan, D. (Ed) (1998) The Australasian Labour Law Reforms: Australia and New Zealand at the End of the Twentieth Century, The Federation Press, Sydney.Google Scholar
Orr, G. (1998) ‘Conspiracy on the Waterfront’, Australian Journal of Labour Law, 11: 159–185.Google Scholar
Orr, G (2001) ‘Agency shops in Australia? Compulsory Bargaining Fees, Union (In)Security and the Rights of Free-Riders’, Australian Journal of Labour Law, 14: 1–35.Google Scholar
Peetz, D. (1998) Unions in a Contrary World: The Future of the Australian Trade Union Movement, Cambridge University Press, Cambridge.CrossRefGoogle Scholar
Peetz, D. (2002) ‘Individual Contracts, Bargaining and Union Membership’, Australian Bulletin of Labour 28: 39–52.Google Scholar
Prince, P. and John, T. (2005) The Constitution and Industrial Relations: Is a Unitary System Achievable?, Parliament of Australia, Parliamentary Library, Research Brief, no. 8, 2005–06, 28 November 2005.Google Scholar
Pyman, A. (2001) ‘Workplace Relations and Other Legislation Amendment Act 1996 (Cwlth): Experiences of Five Australian Trade Unions’, Journal of Industrial Relations, 43: 340–347.CrossRefGoogle Scholar
Quinn, D. (2004) ‘To Be or Not to Be a Member — Is That the Only Question? Freedom of Association under the Workplace Relations Act’, Australian Journal of Labour Law, 17: 1–34.Google Scholar
Rawson, D. (1981) ‘The Law and the Objects of Federal Unions’, Journal of Industrial Relations, 23: 295–309.CrossRefGoogle Scholar
Rimmer, M. (2004) ‘Unions and Arbitration,’ In Isaac, J. and Macintyre, S. (Eds), The New Province for Law and Order: 100 Years of Australian Industrial Conciliation and Arbitration, Cambridge University Press, Cambridge, pp. 275–315.Google Scholar
Rosewarne, S. (2005) ‘Workplace ‘Reform’ and the Restructuring of Higher Education’, Journal of Australian Political Economy 56: 186–206.Google Scholar
Shaw, M. (2005) ‘Make or break for the unions’, The Age, 26 November 2005.Google Scholar
Shaw, J. and Walton, C. (1994) ‘A Union's Right of Entry to the Workplace’, Journal of Industrial Relations, 36: 546–553.CrossRefGoogle Scholar
Stewart, A. (2005) ‘A Simple Plan for Reform? The Problem of Complexity in Workplace Regulation’, Australian Bulletin of Labour, 31: 210–236.Google Scholar
Terry, M. (2003) ‘Partnership and the Future of Trade Unions in the UK’, Economic and Industrial Democracy, 24: 485–507.CrossRefGoogle Scholar
Weeks, P. (1999) ‘Reconstituting the Employment Relationship in the Australian Public Service,’ in Deery, S. and Mitchell, R. (above), pp. 69–87.Google Scholar
Whelan, Justice S. and Zwier, L. (2005) ‘Employee Entitlements and Corporate Insolvency and Reconstruction,’ Research Paper, Centre for Corporate Law and Securities Regulation, University of Melbourne.Google Scholar
Workforce (2005a), ‘Unions to abandon sinking ship?, Workforce, Issue 1521, 9 December 2005.Google Scholar
Workforce (2005b), ‘Unions thank Howard for membership boom’, Workforce, Issue 1518, 18 November 2005.Google Scholar
Workplace Express (2005a), ‘News in brief’, Workplace Express, [Online], Available: http://www.workplaceexpress.com.au [accessed 21 December 2005]Google Scholar
Workplace Express (2005b), ‘Family First to vote against Work Choices bill; Democrats and Greens propose extensive change’, Workplace Express, [Online], Available: http://www.workplaceexpress.com.au [accessed 30 November 2005]Google Scholar
Workplace Express (2006), ‘State Governments reveal detail of High Court challenges to Work Choices Act’>, Workplace Express, [Online] Available: http://www.workplaceexpress.com.au [accessed 20 January 2006]I,+Workplace+Express,+[Online]+Available:+http://www.workplaceexpress.com.au+[accessed+20+January+2006]I>Google Scholar