Collective Bargaining and Essential Services: the Australian Case

Abstract

The introduction of collective bargaining and the right to strike in the federal jurisdiction in 1993 was accompanied by special provisions for essential services. These enable the Australian Industrial Relations Commission to remove the right to strike and substitute compulsory arbitration in the event of 'threatened danger' to the community. The essential services policy approximates the traditional Australian dispute settlement model. The model entails some choice for principal parties between bargaining and arbitration. Choice between processes is implicit in the essential services policy. This has led to controversy concerning union motives when seeking termination of bargaining. This study concludes that employer motives may also be questioned and that the issue of motives remains problematic. An analysis of disputes invoking the new provisions reveals that a predicted growth in interest arbitration has not occurred. The relevant disputes cover health, fire-fighting and electricity distribution services. Prefer ences between bargaining and arbitration vary for both unions and employers. They may also change during the course of a dispute. The mediating variable of commission discretion is crucial to process outcomes. Claims of unfair advantage to unions arising from the policy are rejected. Claims that the provision encourages action designed to threaten to endanger the public are upheld, where either party prefers arbitration and is prepared to take action to achieve that. A critical element of the policy's operation is evidence presented to the commission concerning the impact of industrial action. In some cases the commission has acted with alacrity to withdraw the right to strike. It has also tolerated lengthy periods of industrial action. This reflects, in good measure, the wide variations in the impact of industrial action. Union evidence, whether supporting or opposing termination of bargaining and the right to strike, has, on balance, fared better than employer evidence. Some weaknesses in the policy are identified. These include its reactive nature. Any pro-active measures directed to maintenance of essential services are solely the product of private or self-regulation. Exploration of international models, including diverse Canadian solutions, is advocated. These are the product of greater debate concerning the regulation of industrial relations in essential services than has occurred in Australia.