Enterprise bargaining policy unscathed as smoke clears from inquiry

By Stephen Easton

Friday December 2, 2016

A Labor-dominated Senate committee has given the government 17 suggestions for resolving its incredibly drawn-out enterprise bargaining dispute with its workforce, while two Coalition senators held the line in their dissenting report.

Both sides are dug in deep after almost four years of industrial warfare, theatrically described as a “siege of attrition” against public service unions in the committee report’s title. In that time the government’s position has softened only slightly, in a November 2015 update to the enterprise bargaining policy at the centre of the impasse that raised the limit on pay rises from 1.5% to 2% per year.

The inquiry report explores the long dispute and many arguments and counter-arguments that have been deployed by both sides, and shows plainly that both will only stick to their guns. As the “siege” image suggests, the government is happy to play the waiting game, refusing to backdate any new agreements and slowly convincing public servants that even if they don’t like the offers on the table, there won’t be any better ones.

The reaction to the report on the government’s part makes this plain. First, the Australian Public Service Commission released a new online guide to the weird world of public sector workplace relations on the same day as the committee published its report.

Its explicit purpose is to counter the committee’s views on the saga — or “misinformation and misapprehensions about the policy”, as commissioner John Lloyd prefers to describe them in a circular released today.

Based on a letter from Cash, Lloyd’s memo confirms “the Australian Government has no plans to adopt any of the Committee’s recommendations or make any changes to the Workplace Bargaining Policy 2015” and the APSC notes five more agreements have scraped over the line in the past week in a separate missive.

Now there are 76 new enterprise agreements settled under the policy, 65 of those since it was relaxed slightly in 2015 and 20 since the recent double-dissolution election returned the Coalition to power. But, as the opposition and cross-bench senators on the committee note, a lot of these agreements have been accepted reluctantly, with only slim majorities voting yes after one or more rejections.

And while a lot of agencies have managed to get new EBAs over the line eventually, the majority of APS employees have taken their union’s advice to reject offers made under the Coalition policy, as some of the biggest departments like Human Services and Immigration and Border Protection have held out.

The Community and Public Sector Union told the inquiry the average ‘yes’ vote was only around 55% and 10 of the agencies that secured new agreements since this year’s election had fewer than 100 staff. The union notes a divide between rank-and-file APS-level staff and those in executive ranks. As of November 21, only about 25% of APS staff were working under one of these new agreements and out of them, 37% are in EL1 and EL2 roles.

In contrast, only 9% of APS3s and 12% of APS4s across the whole service work for agencies that have voted in favour of new EBAs. The majority report states:

“Executive Level staff generally have greater capacity to ensure their views are heard and are more likely to be heard. APS level staff are much more likely to be concerned about changes to rights about representation and consultation.”

The war of words laid out in the report shows the deep divergence between the Coalition and the labour movement is at the heart of the dispute, and suggests it is likely to slowly grind on for some time to come.

For instance, the Labor and Greens senators believe it’s clear that the government’s policy and its “hard-line approach … differ markedly from the bargaining policies adopted under previous governments”, whereas Lloyd’s view that it is nothing out of the ordinary was quoted by the Coalition members:

“It is common practice for the Commonwealth Government to set parameters and policies that establish the scope for wage outcomes and changes to employment conditions. The policies and parameters apply to all Government agencies. This has been Commonwealth Government practice over many decades. Most State and Territory governments also guide agency bargaining with similar approaches.”

The CPSU has presented the hated policy as an odd situation where those negotiating with unions are bound by a policy, and those who write the policy don’t have to negotiate.

It is an odd situation that makes life harder for public sector unions than their private sector counterparts, and it is also broadly what governments of both persuasions have done for a long time. But the facts of the unprecedented situation laid out in the report show it offers so little leeway compared to past iterations that bargaining has been near impossible and in many cases, “attrition” is a fair description of the way agreements have been eventually reached.

These completely different understandings of the situation, amplified by the campaigning of both sides, are most evident in how each side describes the biggest bone of contention in the stand-off. More so than pay rises, the CPSU has fought to maintain various existing conditions of employment, which it fears are being shifted out of employee agreements into general employment regulations so they can be more easily removed later or ignored.

Lloyd maintains, however, that the sections being omitted from new agreements are not “existing conditions of employment” at all, but “restrictive work practices and union privileges” while government senators imply an unlikely plot by a “self-interested” union — a somewhat oxymoronic concept — based on “propaganda designed to confuse employees” about what is at stake.

The inquiry also became the theatre for a flare-up in another front of the ongoing culture wars — the argument over whether public servants are very generously remunerated compared to the rest of the country, a strongly held belief used by the APSC as a starting point for enterprise bargaining, or whether this is simply a fiction favoured by conservatives.

The CPSU rallied a large army of its members to make submissions and appear as witnesses to the inquiry, many of whom offered personal stories demonstrating they were a long way from the fat cats riding the gravy train often conjured up in some sections of the media.

The union also submitted its analysis of Australian Bureau of Statistics data showing “the majority of APS employees earn less than the average income” and that in May this year, 53% of APS staff were classified as APS5 or below with a median base salary of $74,451 — compared to the “adult average ordinary full time earnings” of $78,832.

The majority report also cites a Mercer Consulting report commissioned by the APSC, which found that:

“… apart from APS1 and APS2 (which made up less than 6 per cent of the APS workforce as at 30 June 2016), median base salaries in the private sector were above the corresponding APS median salary for the equivalent classification [and] total remuneration packages in the private sector were even higher than corresponding APS total remuneration packages.”

The majority report goes on to look in detail at the situation in DHS, one of the agencies where a huge proportion of the lowest-paid federal public servants can be found and re-runs arguments the CPSU has developed and refined over the course of the long dispute. The contention that the impasse has harmed productivity and effectiveness of the public service in various ways, but had little effect on the Commonwealth’s finances, is particularly compelling.

For the labour movement, it might feel like it has won a battle, to be able to place on the Hansard record statements like this:

“The government has risked the very fabric of the public service ethos by undermining the goodwill of countless public servants and engendering hostility between senior management and employees. In fact, the government has given every appearance of being willing to cut off its nose in spite of its ideological face.”

But the Turnbull government, perhaps happy to use the dispute as a very public way to nail its colours to the mast, appears to feel it only has to hold fast to win the war.

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