Are demarcation disputes back on the horizon?

The federal government introduced the Fair Work Bill 2008 on November 25 last year, replacing the previous government’s Work Choices national industrial relations system, and aims to have the bill through Parliament by March 19, 2009. Kollmorgen said that, currently, union demarcation is generally defined by awards and agreements entered into with named unions as respondents. Existing agreements typically reference union rules and award respondency. This week, Kollmorgen said that two things are set to change the way unions operate in the construction industry, now that the bill has been introduced. Firstly, the bill states: “A permit holder may enter premises to hold discussions with one or more persons who perform work on the premises; and whose industrial interests the permit holder’s organisation is entitled to represent; and who wish to participate in those discussions.” Interpreting the meaning, Kollmorgen said: “So, a union won’t have to be covered by an award or agreement to gain entry to a site for member recruitment and discussion purposes, as long as the union’s rules allow them to cover the workers.” Secondly, Kollmorgen argued, the federal government has removed the traditional concept of respondency in modern awards in order to ensure the award modernisation process was not hamstrung by complex demarcation arguments. Kollmorgen said the government has sought to avoid the inclusion in modern awards of “cumbersome union coverage schedules”. “That is, modern awards will not have any named respondents. So, in order for a union to represent employees, its union rules must permit it to cover the work performed under an award or agreement. This may pose problems for civil construction, where competition between the Australian Workers’ Union and the Construction, Forestry, Mining and Energy Union is keen, Kollmorgen said. “The AWU has traditionally claimed exclusive coverage and the CFMEU maintains that its rules allow it to have coverage. “The AWU’s position is that it long-ago decided it had no interest in highrise construction and that was the domain of the CFMEU and, equally, the CFMEU should not be trying to cover civil construction. Kollmorgen’s prediction is that competition between unions on civil construction sites will increase, and that unions marketing to eligible members will argue they can achieve better agreement outcomes and representation than their union competitor. He said the government has responded to the union and employer concern by suggesting that new representation orders exercised by Fair Work Australia could be the answer. “That is, in the government’s view, the simplest way to manage union representation and potential demarcation disputes is to retain current award-derived coverage rights, and where representation is disputed, parties can apply to FWA for representation orders. Kollmorgen said a party would need to make an application to FWA for orders, but that was probably not a position that civil construction industry employers would want to be in. “In many cases, seeking representation orders that remove a union’s right to represent certain employees could result in uncertainty and be hazardous to site profitability.”

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