The work-life provisions of the a compromise of stakeholder preference.

• Author: Waterhouse, Jennifer
• Position: Contributed Article - Report

Abstract

This paper adopts a stakeholder analysis approach to policy formulation to consider the Rudd Government's success in achieving its work-life balance goals through the Fair Work Act (FWA), the extent to which it consulted stakeholders and the stakeholders to whom it listened. We explore the stated interests of key stakeholders in the process. We review the legislation, the parliamentary debates, and submissions to the Senate Inquiry into the Fair Work Bill 2008. We also consider the related and simultaneous Productivity Commission enquiry into paid parental leave up until the May 2009 federal budget. The paper concludes that the FWA develops a prescriptive response to work-life balance in establishing National Employment Standards for substantive issues including parental leave, maximum hours of work, paid personal carers' leave, compassionate leave, community service leave and the right to request flexible working arrangements. The Act is less prescriptive, however, in relation to process provisions, in particular the powers of the newly established 'Fair Work Australia' to hear and intercede in disputes regarding work-life balance provisions. There is a lack of clarity about individual flexibility agreements and the assessment of the 'Better Off Overall Test' (BOOT). The weak process provisions represent an uneasy and perhaps unworkable compromise between the competing demands of stakeholders.

Introduction

Australian industrial relations policy is characterised by significant state intervention. The state actively establishes the institutions and formal rules of our industrial relations system. The traditional system was eroded by ideological changes effected in recent years. The Workplace Relations Act 1996 was followed by an incremental approach which gradually unravelled the institutions that distributed industrial relations power. At the 2004 election, John Howard did not alert the electorate to his sweeping reform plans, but gained control of the Senate and proceeded with large scale reform through WorkChoices. Colley's review of the stakeholder pressures and the hasty introduction of these changes suggest that there was little rational policy analysis or evidence to support Howard's assertions that removal of wage and unfair dismissal protections would support job creation and enhance productivity. Rather, he represented the interests of business and ignored representations from other stakeholders and the broader community (Colley 2007, pp. 14-15). The Australian Council of Trade Unions (ACTU) campaigned actively against WorkChoices until the 2007 federal election. Its campaign focused on working men and women whose home lives were significantly affected by their lack of choice in industrial arrangements and the difficulties women faced in dealing with employers who were unwilling to provide flexible work arrangements.

At the November 2007 federal election, the Australian Labor Party campaign included a focus on industrial relations reform and support for working families. One year after being elected, the Rudd Labor Government tabled the new Fair Work Australia Bill in the House of Representatives after extensive consultation with employer and employee representatives and state and territory governments (Gillard 2008, p. 11190). Deputy Prime Minister Gillard claimed the Bill met the government's commitment to overturn the inequities and inflexibility of the previous legislation (Gillard 2008, p. 11189).1 Its objects included assisting employees 'to balance their work and family responsibilities by providing for flexible arrangements and rights for employees with caring responsibilities' (Gillard 2008, pp. 11190 and 11195). This differs from WorkChoices which placed an up-front caveat on work-life balance in that this was to be achieved 'through the development of mutually beneficial work practices with employers' (S3[i]). A Senate Inquiry sought submissions and comments on the Bill, prior to it being formally passed into legislation in April 2009.

This paper adopts a stakeholder analysis approach to policy formulation to assess the Rudd Government's success in achieving its work-life balance goals through the Fair WorkAct (FWA) and to identify the consultation of stakeholders into which the government entered. A range of sources is used. Government intentions are identified from review of the legislation and parliamentary debates. The views of significant stakeholders, including current policy preferences and earlier lobbying, are identified by review of submissions to the Senate Inquiry into the Fair Work Bill 2008. We also consider the almost simultaneous Productivity Commission enquiry into paid parental leave and recent industrial disputes over the FWA's flexibility clause requirements. The paper takes a broad focus, beyond work-family balance, to extend to the wider arena of work-life balance.

We conclude that the FWA takes contradictory approaches: a highly prescriptive approach to substantive provisions, such as the minimum standards for work-life balance; but a less prescriptive approach to process provisions, in particular the powers of the new body, Fair Work Australia, to hear and intercede in disputes about work-life issues. The Act represents an uneasy and perhaps unworkable compromise between the competing demands of stakeholders due to weaknesses in process prescription and the possible threats to work-life balance through inclusion of compulsory flexibility clauses in awards and agreements. We argue that the WorkChoices caveat has not been substantially removed and that there remains a significant requirement to consider the needs and economic situation of the employer when seeking to access work-life balance provisions.

Policy Development and Stakeholders in Industrial Relations

There are many schools of thought about public policy processes. Early writers supported a rational approach, which emulated the scientific method of the physical sciences, with a rational and ordered process including specific goals, consideration of alternatives, and logical choices. Others have declared this to be an inadequate description, as many decisions in the political environment are rushed and 'based on immediate electoral advantage, rather than a long term 'national interest" (Davis, Wanna et al. 1990, p. 122) Alternative theories include Simon's model of satisficing with imperfect information and Lindblom's notion of incrementalism, which saw policy develop through a series of small steps and alterations. Lindblom saw this as being democratic because of the bargained nature of changes, but also as a safe way to avoid the larger mistakes that might arise from larger reforms (Lindblom 1959, 1965). Subsequent writers criticised this approach for its assumptions of a pluralist society, as it tended to perpetuate existing power relations and domination of policy processes by a privileged few (Davis, Wanna et al 1990; Ham and Hill 1984). The debate tends to be around whether there is a common public interest, in which a problem is a problem for everyone and goals can be clearly identified.

In the late 1990s, Bridgman and Davis (1998) proposed an Australian policy process cycle. While this has been criticised as an attempt at restoring rational approaches to political decision-making, it is useful as a normative description of good policy-making. The process includes the following stages: identify issues, policy analysis, policy instruments, consultation, coordination, decision, implementation and evaluation. This paper focuses on the consultation, coordination and decision phases of the policy cycle leading to the introduction of the FWA and offers some elementary policy analysis.

While politicians are the decision-makers, they are 'subject to an array of external influences--parliament and their colleagues, the party they represent, interest groups and political donors, the media and public opinion' (Bridgman and Davis 1998, p. 30). Ideology plays a significant role, with extensive changes in policy direction often being evident immediately after a change of government, albeit after a period in power they may rely more on issue identification from the public service (Bridgman and Davis 1998, pp. 30-32). Governments may engage in discussions with interest groups in order to gain their support, or use their specialist knowledge and expertise in policy-making and drafting of legislation. Much of the activity of interest groups may happen behind the scenes, particularly if they are being consulted by government and having success by appealing to political executives. If private lobbying fails, however, interest groups may come to the public notice, as they resort to campaigns, alliances with other groups and other strategies to capture broader public interest and place pressure on policy-makers. An example is the ACTU campaign against WorkChoices. Each group may have to use different strategies at different times, particularly when less sympathetic governments are in power.

While there is unquestionably a role for competing interest groups in society, they can bias policy in favour of minorities if groups have excessive influence in a policy community. Governments risk electoral defeat if they are seen constantly to advantage one group over another (Cook 2004, p. 139; Ryan et al 2003, pp. 213-4,227). Early theoretical approaches to industrial relations (IR) delineated a limited range of parties (see Dunlop 1958) and, while there has been recognition of a broader array of influences (see Ackers 2002), the traditional conceptualisation has continued until recently. Dunlop (1958) viewed the IR arena as a system populated and co-created by the interactions of three main actors--workers and their unions/representatives; employers/business and their representative employer associations; and the state through institutions of government and agencies. Thus the major interest groups in IR...