Courting Disaster

Late last week we found out that the High Court has granted special leave to the Public Service Association and Professional Officers' Association Amalgamated Union of NSW (who I'll call the PSA, for convenience) to argue that the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 is invalid.

To understand that, we need to climb back in time a bit.

In 2007, the Labor government recognized that if the NSW budget was to be kept in check, then public sector wages would need to be tightly controlled.  Wage growth was outstripping revenue growth, and if action was not taken then enormous budget deficits would become entrenched.

The policy they came up with was that public sector wages would be limited to 2.5% except where specific productivity savings could be identified.  Sensible enough.

The problem was that, as Greg Pearce (Minister for Finance) said, "The policy was first introduced by the previous Labor Government in 2007, but that Government failed to implement it." The policy was inconsistently and weakly applied, which pretty much rendered it useless.

The Coalition decided on a different approach, and introduced the the bill in question.

What the bill did was insert s146C into the Industrial Relations Act 1996.  The section reads as follows:

It essentially forces the Industrial Relations Commission to apply the 2.5% policy.  Labor had lost multiple battles in the Industrial Relations Commission before losing government, and it was hoped that this law would effectively remove the Commission as a recourse for aggrieved public sector workers.

The PSA brought an action to the Industrial Relations Court asking that the amendment be declared invalid. Their main submission was as follows:

This was more or less the same argument that had succeeded in the notorious bikies case.  In that case, the bikie clubs challenged the legislation as compelled the Supreme Court to act in a certain way, and in that sense made the court little more than a rubber stamp. This was held by the High Court to be inconsistent with the purpose of a judiciary and, in short, breached the doctrine of separation of powers.

That decision would have been extremely embarrassing for the O'Farrell government but for the fact that the legislation had been passed by the Labor government.

This bill was a Coalition creation - and notwithstanding the fact that the 2.5% had been Labor policy, Labor had argued strenuously and at some length against it when it passed in June 2011.

I don't want to get stuck into a detailed analysis of the decision, given that it lies thoroughly outside my professional experience. Having said that, the decision appears to be a fairly straightforward one, which is usually a bad sign for any challenge. Suffice to say that the Court seemed pretty unimpressed by the PSA's argument.

That makes it perhaps a little surprising that the High Court has agreed to hear the matter.

The High Court is the highest court in Australia, and the final point of call for any party. Given that there are only so many days in a year, the court has to be selective in which matters it agrees to hear.

The court regularly conducts Special Leave Hearings where one or two judges sit and hear a large number of short arguments as to whether special leave should be granted to argue the matter before the full court.

An overwhelming majority of applications are rejected. Having a good chance of winning is not enough - the court will need to convinced, in short, that the matter is significant enough to warrant their time.

Unfortunately the transcript of the special leave application has not, at the time of writing, been published, so for now we are in the dark as to what went on at the hearing. But the news that special leave has been granted must have sent a shiver up O'Farrell's spine.

He has a big agenda.  A very big, very expensive agenda. He will have enough trouble paying for it with moderate wages growth.  If wages grow out of control, he is going to struggle to find the money he needs.

I suspect he'll be saying a little prayer the night before the High Court hears the appeal.

UPDATE: The transcript of the application for special leave has now been posted, if you're super-keen.

The Thin Blue Picket Line

Compensation for police officers injured in the line of duty is an inevitably difficult issue for a government.

Police work is physically dangerous.  It always has been - you can do all the OH&S assessments you like, but criminals will still shoot at police and police will still need drive at 200+km/h to catch drivers who don't stop.

Of course, physical injuries are just part of the danger.  There can be no doubt that policing can and does cause not mental distress and mental injury.

For those reasons, it is unsurprising that police have high numbers of officers on stress leave, sick leave and disability leave. And yes, it costs an absolute fortune to pay all these officers who are on leave for work related injuries.

That's part of the price we pay to have a police force.  They will suffer mental and physical injuries. They need to know that if they are injured they will be (financially) protected - or else they simply won't do the job.

Having said all of that, the government needs to find the funds to pay for this.  And when budgets are tight (not that I couldn't suggest a few places to find the cash) the government may find it difficult to justify the cost.

Moreover, the government's arguments about getting officers back to work do make sense.  As I understand it, there is presently a tendency for officers to receive a large lump sum payout once they are assessed as being permanently incapacitated.  This article claims that these payouts are collequially known as "mortgage busters" - and having worked in public service myself I don't find that hard to believe.

Police Minister Mike Gallagher looking upset about something.  From here

It may well be that there should be a shift in attitudes so that officers who are injured (mentally and physically) are encouraged to get back to work once they are able, rather than been sent out to pasture.  That said, this fact sheet put together by the police union suggests that there are also significant changes to not only the timing but also the quantum of compensation, meaning that officers may be financial devastated if they are injured.

What's the solution?  Well, for once, I'm not going to smug and tell the government what it's doing wrong.  They are either going to upset the police, who have a tremendous amount of bargaining power given the nature of police strike action, or they are going to create a budget headache.

Rightly or wrongly, the role of police in the community gives the force a disproportionate ability to cause chaos with their strikes. This means that if you want to take something away from police, you need to be certain that you will win the public relations argument.

Striking police earlier this week.  Photo from here

I can't see how the O'Farrell government can do that.  Of course, given the recent poll results they may take a "devil may care" approach,  but if they want to avoid a protracted and ugly campaign they will have to give something away.

Of course, the inevitable problem for a Liberal government is that once they start giving into strike action, they can essentially make a rod for their own backs.  If unions know that the O'Farrell is willing to give in if pushed hard enough, they may be all the more likely to take action.

The solution may well be for the Liberals to cave on some apects of the plan and find a middle ground.  If a middle can be charted (perhaps where officers forced onto payments rather than a payout are not financially penalised) then the Liberals may achieve their goal of giving police a motivation to go back to work.

But if the government digs its feet in - let's just say that this could be one strike that really does do some damage.

Looking for a Mandate

What does it take for a party to have a mandate? For that matter - what exactly qualifies as a mandate?  Is winning power enough to have a mandate to make the changes you want?


Do you need to specify every change you want to make?  Or just the ones that will piss some people off?


One thing is for sure - it doesn't make a bit of difference. The party that has the votes will get their way, mandate or not.


If a policy has the votes behind it, then it will be passed.  It's democracy. If the voters don't like it, then the party in question will be answerable at the next election.


There was a great deal of discussion in the various debates over the new IR laws about "mandates". Over the weekend, the Coalition "guillotined" the debate and got the bill through the upper house.


It was a little disappointing to see the Greens bleating over the Coalition's guillotine - the Greens took advantage of the rules in the upper house to filibuster for days on end - the Coalition used the rules to end the filibuster and have a vote.


For the Greens to suggest that the move was anti-democratic - well, it certainly wasn't any more anti-democratic than giving a 6 hour speech to prevent a vote taking place.


The Greens and Labor went on at length during the filibuster about the perceived lack of a mandate, although interestingly David Shoebridge managed avoid the topic almost entirely.


Sen Fazio (ALP): The Government does not have a mandate to introduce this legislation, nor does it have a mandate to implement this policy change.


Sen Cotsis (ALP): The Liberals do not have a mandate. A mandate is gained after taking a policy platform to the people, to the electorate. 


Sen Primrose (ALP): No government should take the decision lightly to interfere in such a dedicated organisation without justification, without consultation and, most critically, without a mandate.


And, my personal favourite:


Sen Kaye (GRN):  The deeper theoretical question is: What does it mean in a bicameral Parliament, a two-House Parliament with an upper House, to have a mandate? There is a small matter of the Constitution. The Constitution states loudly and clearly that for legislation to be passed it has to go through the lower House and the upper House. There is no mandate unless it gets through the upper House. The mandate exists only inasmuch as one can get a majority in the upper House. In a bicameral Parliament supported by the Constitution it must be understood that there is no mandate - no theoretical pinning behind a mandate unless and until that legislation is passed through the upper House.

John Kaye.  Picture from NineMSN

(All quotes from the Hansard)


On which logic, the Coalition now has a mandate.


But did the Coalition in fact have a "mandate" to make these changes?


We've heard endless (and, sometimes, mindless) complaints about Gillard not having a "mandate" to introduce a carbon tax.  She certainly had a mandate to introduce a ETS - it is really only her stupid move in guaranteeing no carbon tax that has gotten her in trouble.


But the move is broadly in line with her policy in seeking to put a price on Carbon.


It is true that the Coalition never said before the election that they would eviscerate the Industrial Relations Commission.  It is probably also true that the Coalition did not advertise the move as it would hurt them at the ballot box.


Such is the good politics/good policy divide.


But can Joe Citizen realy claim to have been unfairly surprised by the move?


First of all, this legislation is straight from the Right playbook.  Reduce the power of unions.  Increase wage control to reduce expenditure.  Require productivity increases to justify wage increases.


This is what Liberal governments do when they are in power.  Last time round Peter Debnam lost, in part, because he promised to slash public service numbers. And who could forget Workchoices?  Or, more to point, will the public ever be allowed to, even for a second?

Picture from here

Secondly, Labor complained incessently about the blank cheque that the Liberal was going to be given because of their failure to "be honest" about their policies.  I wrote about that before the election here.


This was pretty much the theme of Labor's advertising in the final few weeks - O'Farrell is not being upfront, he is being secretive, what will he do when he was in power?

A Labor Leaflet.  From electionleaflets.org.au

The difficulty for Labor is that the response from the electorate was a big "Who cares?  Can't be worse than the other lot."  That may or may not be fair, but Labor have only themselves for that.  Perhaps if the governance under Labor had been a little more competent and a little less scandal ridden people might have paused to think about the consequences of their vote.


But, finally, my biggest gripe with this argument is the fact Labor and the Greens expended a significant amount of energy telling people that the Coalition would attack the public service.


Look at this from davidshoebridge.org.au:

From over here

Now, there was no incontrovertible evidence that O'Farrell would cut public service wages.  But that didn't stop Labor going on about it almost incessantly.  Can Labor really claim that people will now be shocked by this move?  


Who could forget this ad, a contender for the worst election ad ever made:





Everyone knew, or should have known, that the Coalition make changes that would weaken the union movement, and do something to reduce the state's wage bill.


No mandate?  Perhaps.  But an unfair surprise? No way.

A Shoe in the Door

David Shoebridge MLC, I stand and salute you.


The Premier may have accused your party of "abusing parliamentary process" but he is just complaining to the media because he doesn't want to force you to stop. 


First up, a confession.  I really have very little interest in industrial relations as a political discussion.


I don't for a second suggest that it is not an incredibly important area of governance, or that the consequences of the decisions made are not far reaching or crucial.


It just doesn't get me excited.  So, for future reference, don't expect to see me writing much about it.


That said, things got very interesting last night.


For those of you not aware, the Coalition is attempting to pass legislation that will, in short, remove much of the Industrial Relations Commission's power.

At present, under section 146B of the Industrial Relations Act 1996:


"A person may apply to the Commission to have a dispute resolution process conducted by the Commission... if the parties are bound by a federal enterprise agreement."


As I understand, a large proportion of the state government's employees are so eligible.


This bill would insert a new section, which reads as follows:

In simple terms, that would give the state government unprecedented control over the pay and conditions of public sector employees.


The Coalition is making this change because of the burgeoning cost of running this state.  The government's wage bill is unsustainable, and something needs to be done.


That said, Labor and the Greens are unsurprisingly horrified by such a drastic grab for power over pay and conditions.


It was always going to be an emotional debate, but I don't think anyone foresaw this.


I've had the chance to review the Hansard of yesterday's proceedings in the Legislative Council, and suffice to say it is thoroughly worth a read if you have the opportunity.


Thursday started uneventfully enough.  There was a 2 hour debate over whether government business (debate on IR) should take precedence over the general business, which it inevitably did.


Another 2 hours was spent deciding if the IR laws should be the general business discussed.


I suppose time must fly when you're having fun.


Sophia Cotsis (ALP) was the first to speak, kicking off at 2:00.  She spoke passionately about the people who she suggested would be affected by the bill, until she was interrupted by Question Time at 2:30.  


After Question Time and Walt Secord's inaugural speech, debate on the IR laws resumed at 4:07.


Cotsis was interrupted by a constant stream of points of order, mostly pertaining to repetition and relevance, no doubt in an attempt by the Coalition to force her to sit down and shut up.  It wasn't until 6:15 that she resumed her seat.


David Shoebridge (GRN) then rose to speak.

Photo from The Australian

He began by speaking about the plight of the "front line workers" and others who will be affected by the legislation. He then turned to discuss the operation of the act and the doing away of the "independent arbiter".


Unlike Sophie Cotsis, he was for the most part allowed to speak without interjection or points of order, at least at first.


He then moved on to discuss the the consequences of the legislation, and specifically the ability of the unions to work with the government to reach industrial solutions.


It was only once the interjections commenced that his true purpose was revealed (if it was not obvious before):

He then moved on to criticise the government for the manner in which the IR laws have been dealt and the unwillingness of the Coalition to put the matter over for public "debate".


The Herald article published today suggested that the Greens and Labor believe that the other cross-benchers (Christian Democrats and the Shooters and Fishers) would have their resolve to support the changes weakened once the new laws received further exposure.


By 9:25, things had started to get ugly:

Undeterred, Shoebridge swivelled back to start quoting from letters he has received from concerned members of the public.  He spoke passionately about the concerns they have expressed to him and their dismay at the changes suggested.


Finally, at 12:15, some 6 hours after he began, Shoebridge resumed his seat.


The President noted the following:

After a few brief speeches in support of the bill, Greg Donelly (ALP) rose to speak.  At 3:19, the long bell was rung, meaning that debate was temporarily suspended, and "Thursday's debate" could resume at 9am on Friday.


Debate continued today.  The Hansard has not been released yet (they're good, but they're not THAT good) but thanks to @tobiasziegler, I know that Peter Primrose (ALP) spoke for two and a half hours, Lynda Voltz spoke for something similar, and John Kaye spoke for marginally less than the 6 hours David Shoebridge managed last night.


As best I can tell from @greencate's tweets, the long bell was rung sometime around about 11pm.  No doubt the debate will continue tomorrow,


To everyone who thinks it is disgusting that the Greens and the ALP are able to get away with this, the fact is, the Coalition is allowing them to do it.  I'm no expert on Legislative Council procedure, but as I understand it, by a simple majority the Coalition could vote to the have the debate truncated.


So why haven't they?  We all recall how O'Farrell frothed at the mouth with fury when Keneally prorogued parliament so long before the last election to try and prevent an inquiry being held into the fire sale.


The Coalition is understandably wary of ending the debate and then having their own words on the issue thrown back at them, and having the fact that the debate on this law was truncated hurled back at them every day until the next election.


But are the Green's tactics, as O'Farrell described them, an abuse of parliamentary process?


I would say no.


As I said at the start, I have no strong views about the IR changes.  But I celebrate the determination of the Greens to fight the changes until the bitter end.


There is a kind of beauty about the process.  Speakers forced to stand and orate, without falling foul of the rules surrounding relevance and repetition, in a desperate attempt to stave off laws that they feel so strongly about.


It is so different from the usual disgusting behaviour we see from our politicians - crude insults and juvenile joking.  These are politicians that believe something.  You might not agree (I certainly have my reservations) but you have to admire their courage and their determination.


Will it make a difference?  Probably not.  The Shooters and Fishers and the Christian Democrats know which side their bread is buttered - they receive generous dispensations from the O'Farrell government in return for their support, and this bill is right up the conservative alley.  They would not have required much encouraging to vote for it.


What the filibuster does is make sure that the government pays the highest possible price.  The Greens come off as the party that sticks to their guns and fight for what they believe (which, to their credit, they usually do), and these IR changes get the exposure that the Greens desperately want them to get.


It is democracy.  Perhaps not as it was intended, but certainly a noble, invigorating version thereof.


And David Shoebridge has broken a record that must have seemed insurmountable at the time it was set.


You may not agree with his position, but I think we can all admire his determination to have everyone know what it is.