Our Rights at Work Need Fighting For

by Rob Durbridge

It is common ground on all sides of politics that the union campaign against Work Choices played a big part in the defeat of the Howard Government. But the Rudd Government has no intention of returning the favour by restoring the pre-Howard industrial relations system. This is not to underestimate the significance of the abolition of AWAs and the crisis this has caused in the Coalition after it followed extreme anti-union policies promoted by the Right over many years. But it is clear that the campaign to restore rights at work will not occur under the first Rudd government.

Politics and class power are always at the core of industrial relations policy, perhaps more so than in any other area. The Coalition under Howard failed to win public support for a reactionary policy to eliminate unions and the arbitration system, both institutions providing workers with rights and means to enforce them. Now, like the Blair Government, the ALP views unions as legitimate players but as just one player among many; there is little acceptance of the role of the ALP as a partner, political advocate or representative of working people.

Contrast this to the traditional ALP view that unions provide a necessary balance to the power of the employer in the workplace and society, and that the arbitration system exists to give unions rights to represent and organise workers and to make awards to protect rights and standards.

The new government is demonstrably spooked by the media campaign against union influence, but more than that, unions seem to be expected to leave industrial relations to the politicians and confine their activities to the workplace. Contrast Barack Obama’s words in his book “The Audacity of Hope” that he doesn’t feel corrupted that he owes a debt to health care workers and teachers. “I got into politics to fight for these folks, and I’m glad a union is around to remind me of their struggles.” Statements like that would require a “chat” in the ALP leaders’ office today!

Modern Labor seems to regard unions as organisations to be consulted, but not as a partner. Four business groups and the ACTU meet with government in the National Workplace Relations Consultative Council, an initiative of Peter Reith. Despite ACTU attempts to revive the Accord-era Australian Labor Advisory Committee (ALAC) which involved direct meetings between the ACTU and Ministers, this appears to be sidelined or dead. Compared to the Accord era, widely criticised as causing union decline, unions will be more remote from government than they were at that time. This could be a good thing for the union movement if it has the capacity to pursue its objectives and to win gains for members.

The ‘Policy Implementation Plan’ on IR

When the ALP released its Policy Implementation Plan (PIP) in August 2007, it was a signal to business, especially the mining industry, that the ALP was henceforth to take a New Labour approach as in the UK, not that traditionally taken by the ALP or its policies. The PIP

was not the product of an agreement with the ACTU or major unions, neither was it discussed by the ALP Conference. At the time the ACTU Secretary Jeff Lawrence told unions there was ‘no deal, public or private’ about its content.

Ending AWAs and restoring bargaining rights are tremendously important but the political shift the PIP makes away from the ALP’s Conference policy “Forward With Fairness” has profound consequences. As politics it was brilliant. It created a crisis for the Coalition which remains to this day. Allowing the Transition Bill to pass without opposition from the Coalition is a political coup for Minister Gillard which challenges the very identity of the Coalition. The irony is that when Prime Minister Rudd asks, “What does the Coalition stand for?” the question challenges his government as well.

It seems that the Rudd-Gillard team concluded that to win they would need to assure employers that they would have industrial relations policies acceptable to global corporations and which would pose no threat to investment and profits. The total package of measures to be introduced through the Transition Act, National Employment Standards and the substantive Act contain elements of the systems in the US, UK and Europe. It is a policy acceptable to the global market, not the system which distinguished Australian industrial relations for a century.

Rudd and Gillard prior to the election talked about the difficulty of defeating incumbents to justify policy retreats. Now they repeat a mantra of ‘political realities,’ and ‘we cannot recreate the past,’ to justify the shift. Thus far in the early days the strategy has been politically triumphant. Just how it will unfold as unions face the fact that restrictions on bargaining and campaigning, including to the right to strike, remain in place will be interesting. Unlike the U.S., bipartisan politics will not sit as easily in Australia where unions take working class culture and interests more seriously.

How should unions build the campaign for rights at work?

As ever, workplace organisation and campaigning will be decisive. The first priority is to understand the ALP policy. Unions and their members showed rare unity and co-ordination in the campaign to defeat Work Choices. Now we need to assert our rights at work in the development of the new industrial relations system. If the new system does not meet the need for balance, independence and justice in its dealings then it will be rejected and discredited. Rights to organise effectively, to bargain, to make collective agreements, to take industrial action and to have access to an independent tribunal are as strongly held by workers in Australia as they are around the world. If they are not achieved under the first Rudd Government the union movement must pursue them while ensuring that the government is returned. Without a strong union movement not only workers rights are under threat but wider social justice and democracy will also be at risk.

In reforming the industrial relations system Minister Julia Gillard provides clear priorities…to ensure that productivity is enhanced and inflation is controlled while giving unions the ability to bargain collectively above a safety net of national employment standards and modern awards. While this sounds familiar territory, the realities are somewhat different and often hidden in jurisdictional and legislative technicalities. It’s important that the political and industrial essence of this is understood because the changes are coming thick and fast.

The National Employment Standards (NES) were open for submissions until April 4. But some of the National Employment Standards are not standards nor do we know how they will be enforced. A standard requires transparency and measurability. But the Flexible Work NES deliberately does not define the ‘business grounds’ on which an employer can ‘reasonably’ refuse an application for fear of limiting the employers’ options! Neither does it provide recourse in the event of unreasonable refusal. What is the point of a standard if it does not give rise to an entitlement or a right?

One ‘standard’ entitles workers to information about the industrial relations system in general. At best the NES represents a missed opportunity to truly provide a set of minimum standards for all Australian workers, at worst it makes a mockery of the government’s intention to return employment rights removed by ‘Work Choices.’

Flexibility Clauses: Individual Contracts under Common Law

While the ALP has called an end to new AWAs, allowing Transitional Employment Agreements above a safety net to continue until 2013, the pressure for individual employment contracts continues. Owing to pressure from the mining industry, individual common law contracts will be encouraged by requiring all awards and agreements to contain ‘flexibility’ clauses for majority and individual agreements which vary the collective instrument.

Flexibility agreements will be underpinned by a ‘no-disadvantage to the employee’ requirement, but studies of these requirements do not inspire confidence and to be effective require the maintenance of relevant employment standards in awards. At present there are no proposals on the table for the variation of Modern Awards which are created by a request from the Minister. Unless Modern Awards and the National Employment Standards can be varied to improve relevant standards the union bargaining sector will be surrounded non-union employment areas where minimum standards will sink relatively, putting pressure on the organised sector.

Making and maintaining awards at relevant standards is critical. John Buchanan, Director of the Workplace Research Centre at Sydney University told the Senate Inquiry into the Bill,

‘When you are talking about award modernisation you should be looking at instituting a process that can allow the awards to maintain their relevance to a constantly changing setting. When you read the bill you get a very strong impression that award modernisation is going to be finished by 31 December 2009. I think that is an erroneous way of thinking about the process. What you want to set in train is a process whereby the awards can be streamlined and also a process by which they can be adapted to a rapidly changing labour market.’

‘Modern Awards’

Employers are particularly fighting any return of the conciliation and arbitration system which prevailed in the 20^th century and which gave Australian employees more rights and equity than in most comparable countries. That’s why the system became a target for the HR Nicholls society and its ilk. Industrial awards which were made in settlement of industrial disputes gave unions a role as parties which will not be recreated in the new system. In the new system ‘Modern Awards’ will be created and administered by a tribunal established under the Corporations Power of the Constitution, (s xx).

As Professor Ron McCallum has argued, the implications of this are far reaching and that “laws based upon the corporations power (alone) will be centred around corporations to the detriment of flesh and blood persons who interact with corporations.” If allowed to prevail exclusively, employment law based on the Corporations Power, will henceforth revolve around the rights, obligations and interests of corporations rather than the prevention and settlement of industrial disputes involving unions and employers as parties. The motives of employers in wanting to exclude the dispute settlement power S51 (xxxv) is transparent in the light of that view.

In finding the Work Choices laws unconstitutional in his dissenting judgement in the states’ challenge case, Justice Kirby in the High Court said of the conciliation and arbitration power:

The applicable grant of power imported a safeguard, restriction or qualification protective of all those involved in collective industrial bargaining: employer and worker alike. It provided an ultimate constitutional guarantee of fairness and reasonableness in the operation of the federal law with respect to industrial disputes, including for the economically weak and vulnerable. It afforded machinery that was specific to the concerns of the parties, relatively decentralised in operation and focused on the public interest in a way that laws with respect to constitutional corporations made in the Federal Parliament need not be. These values profoundly influenced the nature and aspirations of Australian society, deriving as they did from a deep-seated constitutional prescription. They should not be swept aside lightly by this Court. Doing so would renounce an important part of the nation’s institutional history and the egalitarian and idealistic values that such history has reinforced in the field of industrial disputes and employment standards because of the constitutional prescription. (p 207 of the High Court judgement in Work Choices, November 2006.)

The Federal ALP appears determined to enact the substantive reform bill on the basis of the Corporations Power…whether exclusively or not remains to be seen, but the ‘applicable grant of power’ to which Justice Kirby refers is evidently to be sidelined.

‘Corporations’ was also the power which the High Court found could give the Work Choices laws supremacy over state industrial authorities in the corporate sector. Unless Fair Work Australia is established under legislation which gives it independence and the capacity to determine disputes on the basis of merit it will be a political construct which will be short-lived in the future should the Federal government change. The Federal government should base the new laws on comprehensive powers which will ensure that ILO conventions are reflected and which ensure and independent tribunal to deal with disputes by conciliation and arbitration.

The conciliation and arbitration system which was introduced in 1904 and lasted until the end of the century was a product of Labor policy and the need to regulate employment in the interests of society. It was an ‘historic compromise’ in which unions were subjected to laws requiring rules of behaviour in return for a place in the system to ensure equitable and fair standards of employment. The system was not perfect and always operated in tandem with the labour market and the determination and campaigning of the parties to disputes. Unions could win new standards and conditions; employers could win where unions were reliant on the system rather than rank and file action.

But the new ALP policy means that unions will not regain the capacity to organise which they had pre-Howard. Union right of entry to workplaces will still be restricted and restrictions on industrial action will remain. In the building and construction industry draconian laws remain until 2010 and may be continued longer. Industry-wide campaigns remain a key target for employers in drafting the new laws…unions are expected to bargain individually with multiple employers who work together against unions through industry associations. The ALP has promised to ensure that bargaining will not occur across industries. But industry campaigns have been a key organising principle of union since day one; restrictions on industrial action and the content of agreements are designed to limit union organising.

Whether the ‘national system’ which the Rudd-Gillard government wants to create will go beyond the private sector depends on agreement with state governments. This looks difficult as the Federal Minister resists any agreement on referral of state powers as recommended by Professor George Williams in a report to the NSW government. Should referral occur on a general basis, as happened in Victoria, the state systems of industrial relations will be abolished. A number of state industrial systems currently provide rights to workers and unions which are superior to those proposed for the national system, so difficult negotiations or a stand-off are likely.

published in the
journal Australian Options no 53 2008.

Subs are $20 per year.PO Box 431 SA 5034.
www.australian-options.org.au