The changing contours of labour disputes and conflict resolution in Australia: towards at post-arbitral measurement framework.

Abstract

The structured, predictable pattern of labour disputes and conflict resolution under the conciliation and arbitration system has changed significantly since the decentralisation of wage-setting. Some of the major changes include the reemergence of employer lockouts, the growth in disputes over union recognition and the type of workplace agreement and the use of other forms of dispute resolution such as private mediators and the common law courts. The disputation statistics of the Australian Bureau of Statistics (ABS) have traditionally been amongst the most comprehensive in the OECD and recent adjustments have been made since the introduction of enterprise bargaining. Adjusting classification and measurement systems amidst significant institutional change is a difficult task but it will be argued that the restructured framework does not fully reflect the changed contours of labour disputes and conflict resolution. The ways in which the patterns of disputation and conflict resolution have changed since the move away from the classical arbitral model will be outlined before presenting a reworked framework for measuring and classifying labour disputes which incorporates these changes.

Introduction

Just as employment was structured around the standard 'breadwinner' model (Watson et. al. 2003), so there was a standardised model of the labour dispute under the conciliation andand arbitration system. Some of its key features were as follows; unions almost invariably initiated disputes, disputes were generally quick, unions rarely mobilised outside federal/state industrial relations systems and the industrial tribunals settled any disputes not fixed through informal bargaining. Just over a decade since the decentralisation of bargaining and accompanying legislative reform, virtually none of the core features of the classical arbitral model still hold unchallenged. Employers now initiate disputes. New types of disputes occur over union recognition and type of agreement. Unions mobilise outside the industrial relations system through shareholder activism, international alliances and corporate campaigns. The industrial tribunals have lost their dispute-settling monopoly and the common law courts and also private mediators have assumed more significant roles. Whilst there are fewer disputes, they have become more diverse and unpredictable as the classical arbitral model has been gradually dismantled.

The dispute statistics of the ABS have traditionally been amongst the most comprehensive and accurate in the OECD. It has been oft-noted by scholars that Australia's relatively profligate disputation record by international standards at least partially reflected the more inclusive methodologies of the ABS (Beggs and Chapman, 1987, p. 139; Creigh, 1986; Dabscheck, 1991, p. 179-81) which incorporated disputes excluded by other statistical agencies. The ABS recently reviewed its dispute statistics, in particular changing the way the 'cause of dispute' and 'method of settlement' are classified. Whilst most of the changes are improvements, it will be argued that these revisions do not as a whole represent a coherent new framework which reflects the changed, post-arbitral environment. The ABS cannot change its measurement framework in response to every piece of legislation but systemic changes have occurred which require significant adjustments.

The Demise of the Classical Arbitral Model: How Labour Disputes and Conflict Resolution Have Changed in Australia

Australia and New Zealand are distinctive as the only two advanced market economies to develop systems of compulsory conciliation and arbitration throughout most of the twentieth century. Either party could notify a dispute to the industrial tribunals which could arbitrate binding orders to settle matters still in dispute after conciliation proceedings. Under the conciliation and arbitration system, overlaid on top of the British common law, all forms of industrial action were outlawed until 1930. Conciliation and arbitration was designed to substitute for the 'rude and barbarous process of strikes and lockouts' (Higgins 1915). The prohibition was repealed in 1930 but 'virtually' all industrial action remained unlawful under common law as a tort, breach of contract or crime. Federal and State Parliaments added further limitations on industrial action and 'bans clauses' were commonly inserted in awards, especially during the 1950s and 60s. Consequently, as Creighton and Stewart (1994, p.217 and 256) note, there existed:

   an extraordinary array of sanctions ... to prevent, penalise or
   secure compensation for loss caused in any form of industrial action
   ... if Australian workers have the capacity to take industrial
   action without the imposition of legal sanctions, they do so only
   because employers, governments and others do not choose to call the
   law in aid in all but exceptional circumstances ... the end result
   is that for all practical purposes it has been ... impossible for
   any group of Australian workers lawfully to take industrial action
   (Creighton and Stewart 1994, p.5 and p.217).

In practice, disputation was extensive but patterns of disputation were significantly influenced by the conciliation and arbitration system.

Almost exclusively, unions formally initiated stoppages and disputes. After the famous employer lockouts of the 1890s, there were some lockouts during the formative period of the conciliation and arbitration system and the Great Depression, but they appear to have subsequently been extremely rare up until the late 1990s. (1) Institutional features of the arbitral model--the absence of legal recognition for lockouts, automatic union recognition, the tribunals' authority to arbitrate legally binding settlements to disputes and coordinated employment regulation--largely removed the capacity and incentive to use employer lockouts (Briggs 2006).

Australia had a distinctive pattern of unusually frequent but short strikes by international standards (Creigh 1986). Firstly, stoppages were often used to instigate proceedings in the conciliation and arbitration tribunals. Secondly, while significant pockets of strong workplace unionism did exist (Gahan 1995; Rimmer 1983), it is generally agreed that one of the legacies of the conciliation andand arbitration system was that the systemic development of strike funds and other bargaining infrastructure to maintain long disputes did not occur in Australia (Dabscheck andand Niland, 1981; Peetz 1998; Schwartz 1998, pp. 261-262). Thirdly, long disputes could (and sometimes did) attract heavy sanctions. Registration under the Conciliation and Arbitration Act (1904) carried many advantages for unions but the flipside was an elaborate regulation of their behaviour, including industrial action. Australian unions also rarely coordinated disputes with international or foreign union organisations, or attempted to use levers of pressure outside the industrial relations system. Disputes were consequently almost always bounded by the national industrial relations machinery.

The industrial tribunals had a de facto institutional dispute-settling monopoly with a generally minimal role for the common law courts or private mediators. Generally, only a minority of stoppages were formally ended or resolved through the involvement of the industrial tribunals (Dabscheck and Niland 1981, pp. 74-75; Deery and Plowman 1985, pp.51-52). But where disputes were referred to a third party, both unions and employers used the industrial tribunals as a matter of routine. Common law courts were reluctant to rule on industrial disputes because of the existence of specialist tribunals. The NSW Supreme Court described this tradition well recently:

   This court has a well established reluctance to use equitable
   remedies in disputes of an industrial nature ... in my understanding
   this reluctance is based, at least in part ... on the existence, now
   for about a century, of alternative specialist jurisdictions, which
   overall are better equipped and better empowered to resolve
   industrial disputes (Barloworld Coatings (Aust) Pty Ltd v Australian
   Liquor, Hospitality and Misc. Workers Union [2001] NSWSC 826 (19
   September 2001).

Within this environment, there was also little space for the operation of private mediators. Whilst there were variations between federal and state systems, all fitted within the conciliation and arbitration model, and it is fair to say that the broad parameters of the institutional structures were more alike than different.

Consequently, under the conciliation and arbitration system, Australia had a highly structured model of labour conflict and dispute resolution. Whilst the industrial tribunals still operate, only remnants of the classical arbitral model remain. Specifically, the following changes can be observed:

1. The dispute-settling monopoly of the AIRC has been dismantled, opening up space for the further exercise of coercive pressure in the agreement-making process--but also the emergence of a more pluralistic system of dispute resolution comprising private mediators and the common law courts. The dispute-settling authority of the AIRC is now highly limited and qualified whilst the Workplace Relations Act has established 'clear pathways' for the parties to access the common law courts--as noted by the Victorian Supreme Court.

   ... recourse to the common law courts was the very thing
   contemplated by the Act itself ... it is that industrial
   legislation which thrusts the parties towards the common law courts
   ... if an aggrieved employer seeks then to vindicate his common law
   rights the Act no longer puts a barrier in his way (National
   Workforce and Others v Australian Manufacturing Workers Union (no2)
   (1997) 76 IR 200 at 213).

From 1996, the parties could apply for an s.127 order from the Commission that industrial action stop or not occur (enforceable by way of injunction from the Federal Court), a s166A certificate as a prelude to an action in tort or, according to some courts, apply directly for an interim injunctive order from Supreme Courts. Between 1997 and 2002, according to official records, there were around 2000 s127 applications, 337 s166A applications and 20 Supreme Court rulings granting interlocutory injunctions (Lee 2004). Lee found that few of the s127 applications (325) actually proceeded to a ruling because generally there was a return to work and only in 'fights to the death' (e.g. major industry campaigns such as Campaign 2000) did unions defy orders. The use of common law courts to end (and deter) work stoppages is now an established feature of the bargaining landscape.

The use of private mediators has increased, primarily in non-union settings but also sometimes in unionised workplaces (Van Gramberg, 2006). Drivers behind the growth of private mediators include union decline, the spread of HRM techniques and philosophies, alternative dispute resolution techniques in other legal jurisdictions and public policy. The Work Choices (Workplace Relations Amendment) Act 2005--hereafter referred to as Work Choices--realised a long-standing policy goal of the Liberal-National Party to give 'formal legislative recognition' (Reith, Workplace Express 2000) to private mediators (see Reith 1998). A pilot programme for the provision of private mediators as an alternative to the AIRC for small businesses in Victoria was also initiated in 2005 (Ruddock 2005): 'thus, a new type of third party has emerged: the consultant in conflict' (Van Gramberg, 2006, p.ix).

2. Paradoxically, the question of the extent of illegal industrial action has become a more important issue since the Australian Labor Party legislated for 'protected' industrial action in 1993. Virtually all industrial action was unlawful prior to 1993. In 1993, a boundary was constructed between 'protected' and 'unprotected' industrial action whilst establishing pathways to the common law courts. Consequently, the parties now make extensive use of the law to define, redefine and police the boundary between lawful and unlawful industrial action. The law appears to permeate industrial conflict and bargaining more thoroughly than under the classical arbitral model (Creighton, 1991). Anderson's (2004: 8.25) comments in relation to New Zealand apply equally well to Australia:

... it seems to have become more acceptable to utilise the law as a means of combating strikes and lockouts. The categorisation of a range of strikes as lawful seems to have led to a much greater willingness to use the law against unlawful strikes. During the period when virtually any strike was unlawful there seems to have been a greater reluctance to take full advantage of the law.

The extent of unprotected or unlawful industrial action is consequently now an important subject of public policy debate.

3. There are new sources (or causes) of disputes. The instrument of employment regulation and the method of employee representation are now open to contestation. Union recognition was previously semi-automatic. Registered unions were legally recognised as 'party-principal', representing all employees in the occupations and/or industries to which they were allotted coverage rights and not just members, and could apply to the industrial tribunals to bind employers to award standards. No method for union recognition was established following the decentralisation of bargaining leading to recognition and de-recognition disputes at enterprise level as employers try to resist or drive out unions in the workplace (McCallum 2002). The absence of a legal process for settling disputes over union representation increases the likelihood of strike and lockout.

Furthermore, in the Federal jurisdiction, it has been observed in a series of cases relating to lockouts that one of the first principles of the Workplace Relations Act is neutrality in relation to different types of agreements--union, non-union collective and individual (AWA). Both unions and employers can use industrial action to assert pressure on the other party to yield to their preferred form of agreement, including until the recent Work Choice Amendments, 'AWA Industrial Action' which expressly provided for AWA Lockouts. (2) As Justice Munro noted in a case involving an AWA lockout:

   ... the employer may also be attempting to have his or her view of
   the appropriate bargaining unit prevail over the relevant employees'
   preferred bargaining unit or form of representation. No provision of
   the Act prohibits the forms and procedures for agreement making from
   being applied for that purpose (Section 170MH termination of
   certified agreement Joy Manufacturing Co Pty Ltd, (AIRC, Munro J,
   Print T1133, 25 September 2000)).

Equally, unions are free to use industrial action to pressure employers who would prefer s170LK agreement or AWAs into bargaining collectively. State systems also have multiple agreement streams, either union and non-union collective agreements (NSW, South Australia) or union and individual agreements (Western Australia, Queensland), in which conflict can also occur over the type of agreement.

4. With the legal recognition of lockouts as 'protected' from common law action where they comply with legislative requirements, it has become significantly more common for employers to initiate stoppages (Briggs 2004).

5. Federal and State systems have become more diverse. The waves of legislative reform by Conservative and Labor Governments at both Federal and State level have led to greater differences in our industrial relations systems. Some of the state systems still allow for the notification of disputes during enterprise bargaining to the industrial tribunals whereas the Federal system is constructed around a distinction between 'protected' and 'unprotected' industrial action, and the primary role of the tribunals has been redefined as the interpretation and enforcement of bargaining rules--to 'police the boundaries' (Stewart 2004). The State systems retain more elements of the classical arbitral model, whereas the Federal system has broken away decisively.

6. Labour disputes are also more likely to extend beyond the boundaries of the national industrial relations system. Labour disputes are increasingly likely to spill out of and into Australia as unions form alliances with foreign and international union bodies and the coverage of instruments such as international framework agreements spreads. Some recent examples include disputes between CFMEU and Rio Tinto, FSU and the NAB group, the MUA and Patricks and the AMWU and Norge Skog (a pulp and paper multi-national corporation

Unions also increasingly mobilise beyond the institutional boundaries of the industrial relations system. Australian unions have, as Anderson and Ramsey (2005, p. 6) note, begun a 'new phase' of shareholder activism, using tactics such as resolutions at annual general meetings, lobbying shareholders and superannuation funds to 'vote no' on resolutions and calling extraordinary general meetings to exert pressure in disputes over recognition or enterprise agreements. Anderson and Ramsey identify nine cases of shareholder activism since 2000. Shareholder activism often forms part of wider corporate campaigns which target public and consumer perceptions of the company brand (ACTU 1999; Cutcher 2004). Whist these tactics are not entirely new, as the legal capacity to use industrial action has become more limited and brand has become more central to corporate profitability, Australian unions are more commonly using these campaign techniques to supplement, or even substitute for, industrial action. (3)

Consequently, there are considerably fewer labour disputes but there are new types of disputes, new locations for disputes and their dynamics are less predictable.

The ABS Disputation Framework: the Case for Reform

The disputation statistics of the ABS have always been relatively comprehensive by international standards and accurately reflected the character of disputes and the processes of resolution. Under the ABS framework, there was no minimum duration for a dispute to be included in the figures (some nations only counted disputes which lasted longer than a day, for instance), no minimum requirement on the number of workers involved, and workers indirectly involved as well as directly involved were counted (Creigh and Poland 1983, pp. 34-37). The minimum threshold of ten working days lost (calculated by multiplying the number of workers involved by the duration of the stoppage) used by the ABS would include all but quick stoppages by very small groups of workers (which might reasonably be surmised to be rare). Nor did the ABS exclude stoppages in particular sectors (e.g. stoppages in the public sector are not included in dispute figures by Portuguese statisticians), 'political' strikes or unofficial stoppages (e.g. Japan) (Monger 2005, pp. 166-68), although some minor types of industrial action such as go-slows, work-to-rules and sit-ins were excluded. The ABS did not, however, distinguish between strikes and lockouts, collecting data on both strikes and lockouts and presenting them in a combined set of 'disputes' statistics, but this was of little importance as lockouts were scarce. Beyond the standard indicators (number of stoppages, employees involved, working days lost per employee), the ABS collated statistics on a wide range of indicators including the cause of the stoppage, the duration of the stoppage and the method of resolution.

The ABS has just completed a review of its dispute statistics. There were substantive changes to two areas of the classification framework: the definitions and labels the 'cause of dispute' and 'method of settlement'. (4)

The ABS now classifies the causes of stoppages in the following way:

* A primary division is made between stoppages related or unrelated to the enterprise bargaining (EB) process. EB-related stoppages occur in the process of agreement negotiations, whereas non-EB stoppages occur outside agreement negotiations in circumstances such as award negotiations or disputes over the content or application of an existing agreement.

* Once a stoppage has been allotted to the EB or non-EB stream, it is further categorised according to the substantive cause. Some of these categories have been changed. 'Managerial policy' has been more narrowly and accurately defined as stoppages in direct response to managerial decisions and policies. The category of 'wages' has been renamed as 'remuneration' and expanded to include non-wage remuneration disputes (e.g. allowances, superannuation). Two new categories have been added--'job security' and 'employment conditions' (for a full reproduction of the framework, see table 3).

The framework for classifying 'method of settlement' has been rationalised, extended and renamed. Previously, the method of settlement was recorded as either 'private negotiation' (negotiated settlement without the involvement of tribunals), 'state legislation' or 'federal/joint federal-state legislation' (settlement through tribunals constituted under federal and/or state legislation), 'resumption without negotiation' or 'other' (mediation, plant closures, dismissals, resignations). The framework was oriented to measuring the proportion of disputes settled through the tribunals. It has been rationalised by removing 'various boards, tribunals and pieces of legislation which have been superseded or have ceased to exist' (ABS 2004). It has been extended by introducing one new category--'pre-determined return to work' (for stoppages whose duration is pre-determined, e.g. a 24-hour strike)--and allotting a stand-alone category to 'mediation'. It has been renamed as 'reason work resumed' to reflect more accurately its content, as the end of the stoppage does not necessary indicate a resolution of the dispute.

Most of these changes are improvements. The redefinition of 'managerial policy' was especially necessary because it had become something of a catch-all category into which as many as 80 per cent of all disputes fell--very useful for lecturers who want to demonstrate to students that managers 'cause' disputes but not a particularly accurate reflection of the issues behind the dispute. The new 'reason work resumed' category also appears to be an improvement on the old 'method of settlement'. But these revisions do not as a whole represent a coherent new framework which reflects the changed, post-arbitral environment.

There are three types of further adjustments to the ABS disputation framework which, in my view, are necessary to maintain the quality and relevance of the disputation statistics. Firstly, the ABS should unpack the category of 'dispute' so as to collate and publish figures on employer lockouts separately from union stoppages. Secondly, the primary distinction between EB and non-EB in classifying the cause of disputes does not mirror the major cleavages around which disputes occur in the new environment--in fact, it actually obscures some of the new types of disputes and major issues of public interest such as disputes over union recognition, the type of workplace agreement, the extent of protected and unprotected stoppages and the dispute-propensity of federal and state systems. Thirdly, the changes to the method of settlement/reason work resumed classification framework are effective but could still be improved by some minor adjustments.

What is a 'Dispute'? Accommodating the Legal Recognition and Resurgence of Lockouts

The first adjustment required is the recognition and measurement of lockouts. The traditional objection by the ABS to measuring lockouts was that it is too difficult to distinguish lockouts from strikes--especially where there are conflicting claims by the parties involved as to whether it is a strike or a lockout. Additionally, a strike could evolve into a lockout and vice-versa. These concerns are valid but significantly allayed now that there is a formal process of notification in the federal jurisdiction. A limited immunity from civil liabilities for union strikes and employer lockouts exists under the Workplace Relations Act so long as certain requirements are met, including notification of the affected parties.

The legalisation of lockouts and the process of notification ease the technical obstacles to measurement. Firstly, the process of notification makes it possible to verify claims about the existence or otherwise of a lockout. Secondly, the existence of legal space for 'protected' lockouts removes much of the capacity and incentive for employers using lockouts to obfuscate their existence. Thirdly, the issuing of a notice also makes it possible to identify if a stoppage switches from a strike to a lockout or vice-versa (as happened in several recent disputes).

It would be necessary to define lockouts by reference to formal notification to establish standardised measurement procedures. In this context, it should be also noted that lockouts are just one way in which employers withdraw work as an industrial tactic; stand-downs and the use of common law rights to not pay workers who are not working as directed (for example, because of the imposition of selective bans) are not encompassed by this definition (Briggs 2004). The one remaining area of ambiguity is what might be termed 'de facto lockouts'--disputes, for example, where managers simply refuse to bargain with a unionised workforce, thereby effectively triggering a strike. Whilst these disputes are sometimes referred to by journalists or union officials as lockouts, it would be too difficult and subjective to determine which of these disputes should be reclassified as a lockout for statistical purposes (though they would be captured as 'recognition' disputes under the reconfigured framework presented beneath). Overall, technical objections to measuring lockouts are no longer valid.

Absorbing lockouts into an all-encompassing set of disputes figures, which in the popular mind is equated with strikes, has obscured the increasingly prominent role of lockouts. A database of lockouts, using ABS methodologies to facilitate analysis of the relative significance of lockouts (see Briggs 2004), underlines the point--as illustrated by Table 1:

Table 1: Strikes and Lockouts Compared, 1994-2003

                                             1994-98   1999-03

Disputes comprised by Lockouts                0.4%       2.0%
Working Days Lost in Industrial Disputes      1.6%       9.3%
comprised by Lockouts
Long' Disputes (i.e. greater than 20 days)    7.7%      57.5%
comprised by Lockouts

Source: ABS (1994-2003), Industrial Disputes, Cat. No. 6321.0;
Lockouts in Australia Database (LAD), Briggs, 2004.

Note: The database (LAD) encompasses lockouts in the period
from 1994-2003. The figures are divided into two periods (1994-98,
1999-2003) for two reasons. Firstly, the figures gyrate from
year-to-year and a periodisation gives a more accurate picture of
the overall trend. Secondly, the two time-periods essentially
correspond to before and after the O'Connors lockout. The O'Connors
lockout, which lasted approximately eight months, appears to have
been a catalyst for other employers to use lockouts because it was
subject to extensive legal action, clarifying the meaning and effect
of the key sections of the Workplace Relations Act, illustrating
there were few legal hurdles to using lockouts beyond notification
(see Briggs 2004, pp. 105-06).

Lockouts still constitute only a small proportion of disputes. They are still rare and their usage oscillates significantly from year to year. They also last longer on average than strikes--as reflected in the fact they represented over half of the small number of 'long' disputes which extended beyond twenty working days during 1999-2003--and consequently working days lost to lockouts constituted almost ten per cent of all working days lost to labour disputes. The disproportionate length of lockouts means, on the one hand, that lockouts are more concentrated and less widespread than the figure of one-in-ten working days lost to a dispute may suggest but, on the other hand, that it is also these disputes which have the most serious (sometimes irreparable) economic, social and personal consequences--a fact reflected in the debate during the 2004 election campaign about further empowering the AIRC to settle 'intractable disputes' (see Edwards, 2004).

At a sectoral level, rolling lockouts and strikes together obscures a significant change in the driver of industrial action within manufacturing--as illustrated by Table 2:

Table 2: Strikes and Lockouts, Manufacturing 1994-1998 and 1999-2003

Working Days Lost              1994-98       1999-2003
                               000 & %        000 & %

Total Disputes               627.8 ('000)   730.9 ('000)
Strikes                      609.1 ('000)   536.4 ('000)
Lockouts                     18.7 ('000)    194.5 ('000)
Proportion of Working Days       3.0%          26.6%
Lost to Lockouts

Source: ABS (1994-2003), Industrial Disputes, Cat. No. 6321.0; LAD,
Briggs 2004, p. 108.

As table 2 illustrates, most observers would take the published figures of the ABS to indicate that working days lost to strikes in manufacturing have risen in the second half-decade of enterprise bargaining. In fact, working days lost to strikes have fallen significantly (12 per cent) whilst lockouts have increased more than ten-fold off a low base, surging to an extraordinary one-in-four working days lost in labour disputes during the past five years. The same caveats apply in relation to the disproportionate length of lockouts and their concentration in manufacturing as in general. Nevertheless, its remains significant that employer lockouts, not union strikes, drove the increase in working days lost to disputes in manufacturing from 1998 to 2003.

As a consequence of the ABS not measuring and publishing figures on lockouts, these developments and the growth in lockouts have remained a subterranean development with little awareness or discussion in public life until recently. In the popular (and policy) mind, 'dispute' means 'strike'. Previously, lockouts were so rare that this was of little importance for the ABS figures. But rolling lockouts and strikes together is no longer justifiable now that lockouts are a form of industrial action for which legal protection is available. If dispute statistics were recalibrated to distinguish between lockouts and strikes, it would provide a more accurate source of data relevant to public debates on industrial action, intractable disputes and disputation at sectoral level. (5)

Why Did the Dispute Occur? Moving beyond the Enterprise Bargaining/ Non-Enterprise Bargaining Dichotomy 

The distinction between EBA and non-EBA stoppages attempts to remodel the classification of the cause of the work stoppage to match the new labour relations processes. The logic behind this distinction is not officially explained, but appears to reflect a decision that the primary consideration is to capture the relative incidence of stoppages which occur inside and outside the newly-created enterprise bargaining process. Whilst this is one of a number of legitimate approaches, it will be argued here that the EBA/non-EBA distinction does not correspond to the major institutional cleavages around which disputes occur (such as individualism versus collectivism). Worse, the 'causes' within the EBA and non-EBA streams are not always mutually exclusive categories, whilst some other categories combine quite different types of disputes. The categories within the causes of work stoppage need to be unpacked and reconstituted--a task which will be attempted here.

Table 3 reproduces the ABS framework as it stands:

Table 3: Causes of Industrial Dispute, ABS Framework

Cause                   Definition/Examples

Enterprise Bargaining
(EB) Related

Remuneration            Disputes relating to wages and
                        other forms of remuneration

Employment conditions   Disputes relating to hours of work,
                        leave, non-remuneration related
                        benefits, and other general
                        employment conditions

Other EB related        Causes other than Remuneration or
                        Employment conditions, including
                        job security and other causes
                        relating to a process of workplace/
                        enterprise bargaining e.g. pattern
                        bargaining strikes, disputes where
                        employees refuse to enter into EB
                        negotiations.

Non-EB Related

Remuneration            As above

Employment Conditions   As above

Health and Safety       Disputes concerning physical
                        working conditions, safety issues
                        and workers compensation provisions

Job security            Disputes concerning physical
                        working conditions, safety

Managerial Policy       Disputes relating to the decisions
                        and policies of line managers

Union issues            Disputes concerning the alleged anti-
                        union attitude of the employer,
                        inter-union and inter-union disputes
                        (e.g. demarcation disputes),
                        sympathy stoppages in support of
                        employees in another industry,
                        and recognition of union activities

Other non-EB related    Disputes that cannot be ascribed to
                        any other category e.g. political
                        protests

Source: ABS, 2005.

Note: Examples have only been included for categories
discusses beneath.

If we go through the relevant changes to patterns of disputation and resolution processes listed earlier, some of the difficulties associated with this classification framework will become clearer:

1. There is no way of measuring levels of disputation by jurisdiction. Non-EB stoppages are unprotected in the Federal jurisdiction unless they are related to genuine health and safety concerns but still permitted in the state jurisdictions. Consequently, the non-EB stream is an amalgam of unprotected stoppages and health/safety stoppages in the Federal jurisdiction and stoppages related to award matters or over the interpretation of agreements in the state jurisdictions. In relation to lockouts, Briggs (2004) found they are almost entirely concentrated in the Federal Jurisdiction but there are no data in relation to strikes.

The question whether to measure disputation by jurisdiction is a vexed one in the light of Federal industrial relations reforms. It might reasonably be objected that Federal industrial relations reform makes it unnecessary. The State systems, however, will be extinguished only if State governments hand-over their industrial relations systems to the Commonwealth Government. In the meantime, Work Choices will expand the coverage of the Federal system but only to employees of constitutional corporations. The Federal Government claims that 80-85 per cent of employees will be covered by the Federal system--though this may be optimistic as analyses of unpublished ABS data suggest that a range of 65-75 per cent is more probable (Evesson 2006). Additionally, some of the 'new heartlands' (Briggs et. al. 2002) of the union movement (teachers, nurses, crown employees) will remain in the State systems. It is therefore still worth measuring disputation by jurisdiction. In any event, if the State systems were to be extinguished, the ABS framework will require a major revision: the entire category of non-EBA stoppages would be redundant as stoppages outside bargaining periods are unprotected action under Work Choices.

2. Coalition parliamentarians and employers have repeatedly claimed that there is extensive unprotected industrial action occurring. This seems unlikely in view of the fact that only between approximately 1.5 and 5.25 per cent of employees have been involved annually in a stoppage (including lockouts)--usually 3 per cent and under--from the election of the Coalition in 1997 until 2004 (ABS, Cat. no. 6231.0; ABS,,Cat no. 6202.0). Nevertheless, Tony Abbott, then Minister for Workplace Relations, introduced the Workplace Relations Amendment (Compliance with Court and Tribunal Orders) Bill 2003 to combat what he claimed was widespread unprotected industrial action (Abbott 2003). Work Choices has introduced tougher remedies against unprotected action and added a new object (3.1) for the Workplace Relations Act to balance the right to industrial action 'with the need to protect the public interest and appropriately deal with illegitimate and unprotected industrial action.' In view of the public debate around the extent of protected and unprotected action, and further legislative remedies to restrict industrial action and enhance remedies against unprotected industrial action, it would also be useful to have data on the extent of unprotected industrial action to inform public debate. (6)

3. Nor, as it stands, is there any way of identifying stoppages which occur as a consequence of disputes over union representation or the type of agreement. A stoppage over union recognition to negotiate a collective agreement could prima facie be classified in one of two categories. As it relates to the process of enterprise bargaining, it may be included in 'other EB related' stoppages, but the examples do not appear to include this type of stoppage. Alternatively, it might be classified under 'union issues' although these disputes are defined as external to the process of enterprise bargaining. The category of 'union issues' itself conflates stoppages over disputes between unions over coverage rights (demarcation disputes), disputes between workers and managers over union activities and sympathy strikes. A union recognition stoppage is therefore either classified opaquely as 'other EB related' or placed into an amorphous collection of 'non-bargaining' stoppages which occur as a result of disputes between unions and between unions and employers.

Another issue is the existing framework almost--but not quite--allows the identification of 'interest' disputes (stoppages which occur during the negotiation of new instruments) and 'rights' disputes (stoppages which occur over the interpretation and application of existing instruments). The distinction between enterprise bargaining and non-enterprise bargaining disputes echoes the distinction between 'interests' and 'rights' disputes but there are also some types of interest disputes in the non-enterprise bargaining category.

Consequently, the basic building-blocks need to be revisited and reconstructed. Too much is being expected of the 'causes' category. In fact, the ABS framework as presently structured conflates and mixes together data on the location, cause, legality and procedural stage of a dispute which should be unpacked and reconstituted. Table 4 outlines an alternative framework for classifying and measuring labour disputes:

Table 4: An Alternative Framework for Classifying/Measuring Labour
Disputes

Category       Sub-Category            Definition

Location
               State                   NSW, Victoria etc.

               Jurisdiction            Federal/State
Legal status
               Legal                   Protected (Fed.)/Legal (state)

               Illegal                 Unprotected (Fed.)/Illegal
                                       (state)

               Interest Disputes       Disputes which occur during the
                                       negotiation of new agreement or
                                       award provisions
Process
               Rights Disputes         Disputes which occur over the
                                       interpretation or application of
                                       existing agreement or award
                                       provisions
Cause
               Union Recognition       Disputes over union recognition
                                       in bargaining process. This
                                       category includes:

                                       * stoppages by newly organised
                                       employees to pressure employers
                                       into bargaining

                                       * stoppages to pressure
                                       employers into desisting
                                       from allegedly anti-union
                                       activities or de-recognising
                                       unions (e.g. offering AWAs) and
                                       bargain collectively

               Bargaining Structure    Disputes over the type of
                                       collective bargaining structure
                                       to apply. This category
                                       includes:

                                       * Multi-employer stoppages

                                       * Stoppages to pressure
                                       employers into negotiating
                                       a collective union agreement
                                       instead of non-union
                                       collective agreement

                                       * Lockouts to pressure
                                       employees into consenting to
                                       a non-union collective
                                       agreement

               Union Disputes          Inter-union and intra-union
                                       disputes (e.g. demarcation
                                       disputes)

               Managerial Policy

               Job Security

               Employment Conditions

               OHS                     Current ABS definition

               Other

The advantages of this framework are primarily two-fold. Firstly, it would enable the measurement of data-items not presently available as already discussed (jurisdiction, legality, union recognition). Secondly, there would be a clear demarcation between the categories--both inside the recalibrated framework for classifying causes and between causes and other data-items (location, legality, process). It would therefore remove the overlap in the present framework by allowing for clear identification of 'interest' and 'rights' disputes, stoppages over disputes between unions and disputes over bargaining structure.

How Did the Stoppage End?

Nor does the 'reason work resumed' classification fully reflect the emergent, more pluralistic system of dispute resolution. The recommended adjustments to the 'reason work resumed' category are straightforward and can be plainly stated. The framework does not record the usage of the common law courts to end work stoppages. It does include mediation but only in the event the AIRC refers disputes to mediators; it does not encompass the use of private mediators directly by the parties. Extending the classification framework to accommodate the growth in usage of common law courts and private mediators would better reflect the diversity of methods through which work stoppages end.

Conclusion

The adjustments by the ABS to their dispute statistics framework do represent an improvement. They are piece meal changes, however, when a more thorough restructuring of the framework is required. The ABS dispute statistics do not allow for the identification of lockouts usage, union recognition and agreement disputes, unprotected industrial action or emergent forms of dispute resolution such as the common law courts and private mediators. The ABS dispute statistics framework consequently needs to be reworked to reflect the changing contours of disputes and conflict resolution in the wake of the classical arbitral model. Legislative reforms in the Federal jurisdiction have deconstructed this framework more extensively than State jurisdictions. The incorporation of employees from State jurisdictions into the Federal jurisdiction which will occur following Work Choices will make the task of reconfiguring the framework that much more pressing.

I would like to thank Ian Watson and the anonymous referees for some important comments on an earlier draft and the Australian Research Council for funding the research.

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Endnotes

(1) This category would have to limit itself to stoppages subject to rulings by the AIRC and the common law courts. There may be other stoppages which are unprotected but it would be difficult to develop standardised procedures for the ABS to make consistent judgements on the legality of industrial action.

Chris Briggs, Workplace Research Centre (formerly acirrt), School of Business, University of Sydney