Industrial Relations Commission Research Articles

Challenging the ‘care penalty’: The Queensland pay equity campaign for community services workers

In 2009, the Queensland Industrial Relations Commission delivered a historic pay equity decision for the social and community services sector in Queensland. Employers were persuaded not to oppose the need for pay equity, and government – the major funder of the sector – was persuaded to agree to funding increases, as a result of a campaign coordinated by the relevant trade union, the Queensland Services Union, and the peak body representing the sector, the Queensland Council of Social Service. Informed by participant observation, interviews and documentary analysis, this article identifies key elements of the campaign’s success using the literature on union campaign strategy, especially studies of coalitions. The study contributes to the developing literature on ‘care movements’ and to knowledge of strategies for building and maintaining successful campaign coalitions involving unions.

Presidential address – 27th Annual AIRAANZ conference: ‘Maybe it’s because I’m green’: transition pedagogies for IR and HR students

It is a particular privilege to present the presidential address at the 27th Association of Industrial Relations Academics of Australia and New Zealand (AIRAANZ) conference in Fremantle, Western Australia (WA). My formative years in the industrial relations (IR) field were spent in Perth, mainly as a union industrial officer but also in management consulting and working for the WA Industrial Relations Commission. I completed a Masters in IR at the University of Western Australia (UWA) and my PhD at Murdoch University and taught at UWA and then Edith Cowan University, so Western Australia is my academic as well as professional home base. I recall with great pleasure my years in ‘the Wild West’ of IR and those who were (and are) my colleagues, my comrades, my mentors, my students and – above all – my teachers.

Federal Constitutional Influences on State Judicial Review

The extent to which competing principles apply to judicial review at the State level has long been unclear. It seemed that State judicial review adopted many of the doctrinal limits developed at the federal level but none of its benefits. This has certainly changed with the confirmation in Kirk v Industrial Relations Commission of NSW of the existence of a constitutionally entrenched minimum level of review at the State level. At the same time, however, the obvious benefits that arise from the constitutional entrenchment of judicial review at the State level should not distract attention from the restrictions that inevitably arise from the Constitution. This article examines the nature of those limits and how Kirk reinforces constitutional limitations upon State legislatures and courts.

ENTERPRISE BARGAINING AND PRODUCTIVITY

When the Australian Industrial Relations Commission, in April 1991, refused to introduce a principle for enterprise bargaining, it was sceptical of claims that enterprise bargaining would raise both the level and rate of growth of productivity. An examination of productivity data for the years between 1964–65 and 2010–2010 shows little evidence of any boost to productivity that could be attributed to enterprise bargaining. The trend growth rate after 1991 was less than in the preceding 27 years. There is some evidence of a rise-sometimes characterised as a ‘surge’—in productivity in the later 1990s. Since then, the productivity record has been poor. The suggestion that the ‘surge’ was due to enterprise bargaining has little or no empirical basis. Analysis of productivity at the industry level indicates that different industries had widely different productivity experiences, with little sign that enterprise bargaining was a significant cause of superior performance. The Commission's scepticism has been vindicated.

Continuity and Change in the Australian Minimum Wage Setting System: The Legacy of the Commission

Australia has a long history of institutional minimum wage determination. We examine the features and the changes in the minimum wages system. We identify its enduring characteristics, its place the Australian system in an international context and see where Fair Work Australia is located in relation to previous arrangements. We ask why a minimum wage system is still required and we examine the legacy of the Australian Industrial Relations Commission and its predecessors in minimum wage determination.

Reflections on the Commission’s Legacy in Legislated Minimum Standards

This article examines the extent to which the labour standards adopted by the Australian Industrial Relations Commission and its predecessors have left a ‘legacy’ in the new legislated standards and dismissal protection in the Fair Work Act 2009. The Commission’s ‘community standards’, developed from ‘test cases’ and piecemeal from other decisions, will be explored, together with factors that had an impact on those decisions, including: the very nature of test cases; economic, social and public interest considerations; the federal statute; State legislative developments; and international influences. Case studies involving paid annual leave and standard hours of work will illustrate the Commission’s approach in its decision-making. Questions are posed as to whether the Commission has left guiding principles to achieve economic and social justice and assist future policymakers and regulators when they face similar decisions; and why some Commission standards were not legislated but may remain in awards.

The Evolution of an Institution: The Transition from the Australian Industrial Relations Commission to Fair Work Australia

The Evolution of an Institution: The Transition from the Australian Industrial Relations Commission to Fair Work Australia

The Quest for Fairness in Australian Minimum Wages

The attainment of ‘fairness’ is widely regarded as a worthy goal of setting minimum wages, but opinions differ sharply over how to achieve it. This article examines how interpretations of fairness shaped the minimum wage decisions of the Australian Industrial Relations Commission between 1997 and 2005. It explores the Commission's approaches to three aspects of fairness in minimum wages: first, eligibility for increases; second, the form of increase; and third, the rate of increase over time. The Australian Industrial Relations Commission consistently gave minimum wage increases that were expressed in dollar values and applied to all federal awards. Its decisions delivered real wage increases for the lowest paid, but led to falls in real and relative wages for the majority of award-reliant workers. Fair Work Australia, the authority now responsible for setting minimum wages in the national system, appears apprehensive about parts of the Australian Industrial Relations Commission's legacy and has foreshadowed a different approach, particularly with respect to the form of adjustment.

Gender Equity: The Commission’s Legacy and the Challenge for Fair Work Australia

Two labour-market variables, wages and hours, are used to review the gender relations record of the Australian Industrial Relations Commission and its predecessors. This review informs an assessment of what features of Commission practice and capacity should and can be replicated by Fair Work Australia. Arbitration has been most decisive for women in paid work when it has enjoyed national and industry distribution. Advances in equal pay and leave linked to reproduction are two relevant examples, although these advances have been confronted more recently by frailties in federal gender pay equity regulation and policy shifts to enterprise and individual bargaining. The findings suggest an agenda for Fair Work Australia, notwithstanding the possibilities and limitations posed by the Fair Work Act 2009 and the tendency for changes to the gender contract to be highly contested.

Fair Work Australia: The Commission Reborn?

Fair Work Australia is a new institution created in 2009 to perform a range of functions under the Fair Work legislation – although it is far from the ‘one-stop shop’ that Labor had originally promised. It has much in common with the body it principally replaced, the Australian Industrial Relations Commission, not least in terms of its personnel. Yet, at the same time, it has the freedom to operate in ways that have more in common with two other antecedents, the Workplace Authority and the Australian Fair Pay Commission. This article explores the character of the new agency and the processes it has chosen to adopt for four key functions: the approval of enterprise agreements; the resolution of unfair dismissal claims; wage fixation; and the setting and variation of minimum standards.

What Role do Safety Net Wage Adjustments Play in Alleviating Household Need?

The strength of the relationship between low wages and household needs has become an important measure of the effectiveness of Australia’s employment safety net. This paper reviews the recent treatment of the needs issue in safety net wage cases of the Australian Industrial Relations Commission, and provides a statistical analysis of data from two nationwide household surveys. I develop a method of identifying low-wage earners in sectors with high award reliance, and use it to describe the characteristics of their households. The workers of interest are predominantly found in households near the middle of the income distribution, rather than at the bottom end, because they typically live with other, higher-paid workers. The minority living in single-income households are more likely to be below the median income and to experience financial stress. A safety net maintained partly on the basis of a ‘needs’ criterion should be especially focused on the circumstances and prospects of this single-income group.

Power Sharing in Progressive Discipline: New Rules of Engagement Arising from an Australian Perspective

The aim of this exploratory study is to apply the lens of power to the understanding of progressive discipline in Australian workplace contexts. Using data from the Australian Industrial Relations Commission, we analysed the outcomes of 78 unfair dismissal cases across 17 industries over a four-year period (1997-2000). We found that the application of progressive discipline on employees is concentrated around industry and occupational class. Specifically, it shows that occupational classes such as unskilled, skilled, and sales staff are more susceptible to disciplining by employers. It raises the awareness of the immense power the employer derives from the use of progressive discipline over employees and implications in the new environment of on-going labour deregulation and the lack of statutory intervention to ameliorate the growing power imbalance. Given that the research focuses on progressive discipline, the data provides strong grounding for theory building and telling a story on the industrial relations environment where power is becoming increasingly oriented towards employers, especially as union density declines. As such, we hope the simplicity of our research inspires further research that uses more advanced statistical analysis and modelling. The paper has implications for managers/supervisors involved in formulation of progressive discipline policies and for employee advocates who champion employee welfare. It demonstrates that power determines employee performance outcomes, which may not necessarily be in the interest of the employer and to a greater degree the employee. When applying current theory in power, one can challenge the relevance of archaic progressive discipline practices in the context of today’s economic realities. We offer some insights into improving progressive discipline as a tool of managerial control. Our recommendations in this paper will also be relevant to countries with labour legislation and human resource practices similar to Australia such as U.S.A., United Kingdom, Canada, and New Zealand. Keywords: Progressive Discipline, Power, Australian Arbitration, Governmentality

The impact of the nursing hours per patient day (NHPPD) staffing method on patient outcomes: A retrospective analysis of patient and staffing data

In March 2002 the Australian Industrial Relations Commission ordered the introduction of a new staffing method - nursing hours per patient day (NHPPD) - for implementation in Western Australia public hospitals. This method used a "bottom up" approach to classify each hospital ward into one of seven categories using characteristics such as patient complexity, intervention levels, the presence of high dependency beds, the emergency/elective patient mix and patient turnover. Once classified, NHPPD were allocated for each ward. The objective of this study was to determine the impact of implementing the NHPPD staffing method on 14 nursing-sensitive outcomes: central nervous system complications, wound infections, pulmonary failure, urinary tract infection, pressure ulcer, pneumonia, deep vein thrombosis, ulcer/gastritis/upper gastrointestinal bleed, sepsis, physiologic/metabolic derangement, shock/cardiac arrest, mortality, failure to rescue and length of stay. The research design was an interrupted time series using retrospective analysis of patient and staffing administrative data from three adult tertiary hospitals in metropolitan Perth over a 4-year period. All patient records (N=236,454) and nurse staffing records (N=150,925) from NHPPD wards were included. The study found significant decreases in the rates of nine nursing-sensitive outcomes when examining hospital-level data following implementation of NHPPD; mortality, central nervous system complications, pressure ulcers, deep vein thrombosis, sepsis, ulcer/gastritis/upper gastrointestinal bleed shock/cardiac arrest, pneumonia and average length of stay. At the ward level, significant decreases in the rates of five nursing-sensitive outcomes; mortality, shock/cardiac arrest, ulcer/gastritis/upper gastrointestinal bleed, length of stay and urinary tract infections occurred. The findings provide evidence to support the continuation of the NHPPD staffing method. They also add to evidence about the importance of nurse staffing to patient safety; evidence that must influence policy. This study is one of the first to empirically review a specific nurse staffing method, based on an individual assessment of each ward to determine staffing requirements, rather than a "one-size-fits-all" approach.

Major Tribunal Decisions in 2009

The year 2009 has seen significant change in Australian industrial relations, in particular, the repeal of the Workplace Relations Act 1996 and its replacement with Labor’s Fair Work Act 2009. From 1 July 2009, a new industrial tribunal, Fair Work Australia, replaced the Australian Industrial Relations Commission. The decisions issued by Fair Work Australia (FWA) since 1 July 2009 have put the provisions of the Fair Work Act into practice and perspective. This article focuses on those decisions which have dealt with enterprise bargaining and the agreement-making process under the Fair Work Act. Those cases demonstrate that the new agreement-making process is procedurally complex, and that FWA lacks discretion to approve enterprise agreements notwithstanding some procedural irregularity. FWA’s lack of discretion in determining whether an enterprise agreement has been ‘genuinely agreed to’ is inconsistent with the discretion reposed in FWA in other matters, including in determining whether an applicant for a protected action ballot order has been ‘genuinely trying to reach an agreement’.

How Should Minimum Wages be Set in Australia?

Two recurring themes in submissions by industry groups and the Coalition Government to Safety Net Cases administered by both the Australian Industrial Relations Commission and the Australian Fair Pay Commission, as well as in decisions by both Commissions, have been that (1) an improvement in the tax/transfer arrangements for the low paid is a partial substitute for minimum wage increases; and (2) the family circumstances of low wage recipients should influence the degree of minimum wage adjustment. In this paper it is argued that conflation of the wage and tax/transfer systems introduces major contradictions into the principles of minimum wage adjustment, and that reliance on the tax/transfer system leads to adverse economic and social consequences. A simple rule for minimum wage adjustment is advocated, with the minimum wage level also being periodically recalibrated to enable the ongoing social inclusion of its recipients. Finally, in the international literature, the macroeconomic consequences of modest minimum wage adjustment remain contested, but this debate becomes largely irrelevant if the Federal Government renews its commitment to full employment through a Job Guarantee. Then the minimum wage also becomes the nominal anchor of the wage and price system.

A Typology of Employee Explanations of Misbehaviour: An Analysis of Unfair Dismissal Cases

This article investigates an aspect of employee misbehaviour research that has received limited attention: the explanations employees provide for their behaviour. In Australia, employees dismissed for inappropriate behaviour may be able to pursue an unfair dismissal claim. To progress our understanding of employee misbehaviour, this research examines the explanations that employees provide to defend their behaviour at unfair dismissal hearings before the Australian Industrial Relations Commission. In this investigation, organizational behaviour theories of cognitive dissonance and organizational justice, and criminal sociology theory of neutralization, underpin the contention that employees’ explanations of their behaviour may reflect rationalizations of their behaviour that may differ from actual events. This article presents the ‘employee explanation model’, a conceptual framework categorizing the range of rationale employees provide to their employer. The model identifies three domains of rationalization: workplace related; personal-inside; and personal-outside. These domains may or may not operate independently, with mutual occurrence demanding the employer interpret and manage a ‘conflated’ rationale. This model further develops the description of organizational misbehaviour contained in Vardi and Weitz’s (2004) general framework.

The Impact of the Workplace Relations Act on Regional Patterns of Industrial Relations: The Illawarra Region of Australia, 1996— 2004

Work Choices fundamentally restructured the Australian industrial relations system in 2005, by marginalizing the role of awards and the Australian Industrial Relations Commission, privileging individual contracts and restricting industrial action by trade unions. The Workplace Relations Act 1996 (WRA) represented a significant first step in this direction prior to the Liberal National coalition gaining control of the Senate in 2005. However, there has been no extensive workplace data of the kind produced by the Australian Workplace Relations Survey to take stock of the impact of the WRA. This study undertakes a stocktake of the impact of the WRA for the Illawarra region. It compares data for trade unions, employer associations, forms of employee participation, workplace reductions, industrial disputes and payment systems from the Illawarra Regional Workplace Industrial Relations Survey 1996 with a further survey in 2004. It concludes that while the WRA did impact on the region, the Illawarra nevertheless maintained a distinctive pattern of industrial relations in which the New South Wales State system was more influential. If this provides any indication of the wider impact of the WRA, it offers strong reasons as to why the government proceeded with Work Choices.

The First Two Decisions of the Australian Fair Pay Commission: A Critique

The Australian Fair Pay Commission (AFPC) was established by the Howard government under the controversial WorkChoices legislation. It was heralded by its supporters as a major improvement on the previous system of safety-net wage cases under the Industrial Relations Commission and universally condemned by the union movement and Labor. Others questioned whether a minimum wage was needed at all or even whether it was a major impediment to labour-market adjustment. The AFPC's first and subsequent decisions were, therefore, looked on with interest by the media, academics, politicians and vested interests. This paper provides a critique of the AFPC's first decisions and suggests how the process of arriving at a minimum wage could be improved.

Labour Standards, Safety Nets and Minimum Conditions

One day in the 1990s, I found myself sitting in a hospital cafeteria with a group of people I had just met. We were eating cheese and tomato sandwiches, drinking terrible coffee and talking about work. The nurses in the group--midwives--were chatting about the challenges and rewards of shift work and delivering babies in their small Tasmanian town. About how scheduled shift times and the arrival of babies did not always mesh. I was in fact in the middle of one of the key processes by which the minimum standards for Australian workers have been fixed for about a century. The cafeteria group consisted of Commissioner Frawley of the Australian Industrial Relations Commission (AIRC), representatives of nurses and health workers unions (from the Tasmanian branch offices and in my case the union's national office in Melbourne), local shop stewards from within the hospital, midwives, senior nurse managers, hospital management and senior health service industrial relations officials. The Commissioner was 'on inspection': informing himself by direct interviews with workers and managers at their workplaces about the 'dispute' which unions had 'notified' to the AIRC under the then federal Act. The dispute was about the intention of Tasmanian public hospitals to overturn the existing practice that an eight hour shift was inclusive of a paid meal break, and introduce a new arrangement where shift times would be eight and a half hours long to permit an unpaid half hour break in the middle. Later in the week, most of us were back in the Court buildings in Hobart in a formal arbitration hearing before Commissioner Frawley. We lost our argument to retain the 'straight eights', and it was decided that nurses in Tasmania should work eight hour shifts spread over an eight and a half hours. Through his decision, Commissioner Frawley added another brick to the complex, multi-patterned edifice of labour standards, or minimum conditions, or safety net (the terms are really interchangeable) created through the processes of conciliation and arbitration. He had added to the Australian legal regulation of working time in ways which changed the working lives of those nurses and the ways in which the service they delivered was organised. The Commissioner's decision altered the overall cost of nursing labour in Tasmania (a net saving to the Government because the span of the working day was extended), and impacted upon the productivity of this sector of the workforce in ways yet to be measured. It goes without saying that the decision was unmarked by anyone outside those directly concerned, and like virtually all such similar (and much more significant) decisions on working conditions, unexamined in the literature. I have perhaps already breached Professor Hancock's stricture that nostalgia is not helpful. This personal anecdote frames my response to the plenary sessions because it highlights some of the important aspects of standard-setting in Australia. In my opinion, the best of what used to be remains an option for the future development of institutions and processes for setting standards in this country. Nothing is to be gained by starting from the premise that Australian labour law fits neatly within a traditional picture of labour regulation, as so often is assumed. This traditional picture derives from labour law discourse in the British tradition, which sees two distinct categories of such laws. First, there will be laws which structure and permit collective bargaining, so that unionised workers may meet employers with a measure of power and thereby shape their own working lives. Professor McCallum re-articulates the relevance of this vision of labour law for twenty-first century Australia. Secondly, where workers are too weakly organised, law should step in and determine the conditions which should apply in the absence of collective bargaining. This subsidiary 'regulatory' role for law (or legally binding instruments) is also recognised in all the plenary papers. …

The Future of Industrial Relations in Australia

The institutions of industrial relations have proved to be more malleable than I expected in the mid-eighties, and the ‘system’ has, for better or for worse, been transformed.Underlying forces conducive to change have been the economy’s exposure to external competition, related changes in the structure of industry and employment, the pervasive free market ideology and a sustained decline in union density. More fortuitous factors, such as the antipathy of an ACTU Secretary to members of the Australian Industrial Relations Commission, a Prime Minister’s entrenched hostility to the ‘system’, the Coalition’s unexpected capture of a Senate majority in 2004 and the High Court’s validation of WorkChoices, have also contributed to the present state of play.