Industrial relations nightmare — Courses of action

Union members are coming to realise that the current FairWork Australia Act is WorkChoices Lite.

We know that governments and their business backers want to end what remains of the union movement (down to 13% of the workforce), especially the more militant unions.

Now with the sacking of 100 waterside workers at Hutchison’s in the ports of Sydney and Brisbane, union members have been asking what can be done to retrieve ground that has been lost. Former union leader now deputy President of the FairWork Commission, Anna Booth, has ordered workers to stop picketing outside Hutchison terminals in Sydney and Brisbane.

Piecemeal approaches have been tried and failed, falling in behind Labor politicians seeking re-election has failed.

Here are options thrown up from earlier disputes.

Long before WorkChoices, industrial relations and other laws were anti‑worker. The law recognises workers as the subjects of capital. The system relies on workers’ compliance — forced or misled, stick or carrot.

Unions have already begun to oppose such laws more rigorously. But what strategies are to be followed?

1. Accept the IR legislation and the current system

Reform the laws through parliament

The union movement currently operates, by and large, through the system of industrial law. Even the Patricks dispute saw very little organised defiance of laws, unions putting great emphasis on a legal approach. As time is beginning to show, the legal victory in that dispute was not necessarily an advance for workers.

One risk in constantly trying to play the game, and use the rules to the workers’ advantage — resting on the belief in the ‘independent umpire’ — is that the unions are likely to be bound by the rhetoric, and the law, and find themselves caught in a destructive system out of which they won’t be able to break. The unfortunate thing is that there isn’t a union leader who, for a single minute, believes that the system is fair.

Playing by the rules may empower a legal fraternity and a small section of the union movement but may also disempower the vast majority of workers. This will be death by a thousand cuts, as workers’ rights and conditions are whittled away by a system that can’t keep still, and has to search for any way it can to increase the exploitation of labour.

The continuation of the existing system will see, increasingly, workers fighting among themselves, loss of militants to self-employment and social movements, workers abstaining from industrial action, declining union memberships, a growing distance between union officials and the rank-and-file, while the employers rub their hands with glee. With time we will be left with a dying generation of unionists bewildered by a new generation of workers who see little relevance in unions.

Benefits are few. The structure remains intact and there are systems in place to stop gross abuses of workers. There are career paths for a few unionists into bigger unions, better paid jobs in parliament, onto the boards of superannuation funds, and even into the industrial relations courts. For the majority of unionists, it’s an occasional blue, a two percent wage rise every once in a while, and a few drinks on Labor Day, superannuation that pays for a trip around Australia in retirement and a decent burial at the end.

Reform through parliament aims at overturning the wide range of anti-union legislation that has been passed in parliament over the past 30 years (ranging from the 1976 secondary boycott legislation to the Workplace Relations Act amendments of 2005). The focus is on getting worker representatives into parliament.

While perhaps all strategies short of a revolution aim at better laws, this option is characterized by union affiliation with the ALP, lobbying and financial support. It means engaging with pre-selection processes to choose candidates, and holding the successful ones to a pro-worker position.

This strategy demands that unions avoid embarrassing their parliamentary allies through partisan demands, and adhere to their demands to serve the ‘national interest’.

Extend Enterprise Agreements till after 2007 election

The strategy is to push employers into workplace agreements that merge the conditions in Enterprise Bargaining Agreements (upon expiry) with award conditions. This is to ensure that there is no loss of conditions such as penalty and overtime rates and union representation in disputes. These conditions were taken away under the WorkChoices legislation enacted on 27 March 2006.

Under s116B (1) of WorkChoices amendments there are 12 conditions of employment which can no longer be included in awards. These were previously known as allowable award matters. The abolished award conditions are:

a) rights of an organisation of employers or employees to participate in, or represent an employer or employee in, the whole or part of a dispute settling procedure, unless the Schedule 1 Main amendments 290 Workplace Relations Amendment (Work Choices) Act 2005 No. 153, 2005 organisation is the representative of the employer’s or employee’s choice;

b) conversion from casual employment to another type of employment;

c) the number or proportion of employees that an employer may employ in a particular type of employment;

d) prohibitions (whether direct or indirect) on an employer employing employees in a particular type of employment;

e) the maximum or minimum hours of work for regular part-time employees;

f) restrictions on the range or duration of training arrangements;

g) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;

h) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;

i) union picnic days;

j) tallies in the meat industry;

k) dispute resolution training leave;

l) trade union training leave[1]

The proposed enterprise agreements tried to work around the above legislation. Under WorkChoices legislation introduced in 2006 there were 5 minimum Fair Pay and Conditions Standard (FPCS) which are (1) hours of work, (2) annual leave, (3) parental leave, (4) minimum wage and (5) personal/carer’s (sick) leave.

There is some doubt about the lawfulness of this type of enterprise agreement. Court cases are likely to occur over disputes that arise from any loss of conditions as the officials were avoiding strike action until they find the perfect dispute (wherever that may be). They want to defend the perfectly spoken and well turned out mother of five sacked for being late for work on account of her disabled son. But what about ordinary workers?

Benefits

Legislative changes offer far-reaching effects with a potential for achieving a more favourable framework for industrial relations, with institutional recognition of workers’ rights. This strategy avoids exposing particular sections of workers to confrontation and possible sacrifice, associated with serious industrial action. Parliamentary reform involves a broader political process. It does not risk the union organisation because of ‘illegal’ activity contemplated by other strategies. In other words, this strategy does not expose the unions to a major confrontation with the state.

Risks

Under this strategy, unions have considerable resources tied up in getting people into the parliament rather than in looking after their members and organising industrial action. Funds that could be put into a strike fund or organising members go to another organisation i.e. a political party like the Labor Party. The leadership is constantly engaged with the parliamentary process, diverting energies away from the day-to-day concerns of the rank-and-file.

Furthermore, this strategy demands that the ALP achieves the highly unlikely scenario of winning a majority in both houses, or, more likely, of winning a majority in the House of Representatives and getting compliance from smaller parties in the Senate. However, getting candidates elected is not guaranteed and even if a candidate gets into parliament there are many other issues in the parliamentary system competing for the attention of parliamentarians.

Once elected, many ALP parliamentarians relegate union rights to a low priority on their list of reforms, and make few solid commitments. Even within the campaign against the industrial relations reforms of the Howard Government, it took union pressure for the then Leader of the Opposition, Beazley, finally to promise (in June 2006) to abolish AWAs if the ALP were elected. He did so when it became obvious that he would need to make such a promise to have a chance of electoral success in 2007.

The cost of getting ex-union officials into parliament is that the obligations of office prevent the new MP from defending workers’ rights: pressure to govern ‘for all in the national interest’ translates into governing in the interest of business.

Under this strategy unions become stakeholders in a system that is dedicated to economic goals like efficiency and productivity in the capitalist economy, the national interest, and free trade agreements with countries where trade union and workers’ rights are minimal.

This strategy is one of the cornerstones of Australian unionism, and closely bound to the origins of the Australian Labor Party. It is the tribal myth of the ALP that, with the defeat of shearers in Queensland in 1891, it was not possible to achieve workers’ rights through industrial action alone, and only with parliamentary representation could workers’ rights be achieved.

Yet history is replete with examples of ALP governments neglecting or turning on the union movement. Perhaps the worst example of this occurred during the 1949 coal strike when a Labor government turned troops on workers. More recently failure by the Hawke Labor government to repeal the anti-secondary boycott provisions of the Trade Practices Act were used during Hawke’s time in office to financially cripple the AMIEU (Meatworkers union). Hawke also used Air Force pilots to break the pilots’ strike.

In 2005 the ALP government in Victoria used the previous conservative government’s essential services legislation against power workers. This was legislation it had previously condemned and had pledged to change.

In Queensland once the 1985 SEQEB dispute was over and the ALP came to power, it did not reinstate sacked SEQEB workers or change the legislation dramatically. It only offered better redundancies and continued the drastic rationalisation of the electricity industry exemplified by changing the way the important task of cable jointing was performed.

An interview with Bernie Neville who was one of the sacked workers has revealed the effects that loss of the dispute had on infrastructure and planning in the electricity industry in south-east Queensland.

Prior to the dispute, 94-95 cable jointers and trades assistants were employed in Brisbane at such SEQEB depots as Rocklea, Albion, Gregory Terrace, Greenslopes and Southport.[2] These skilled tradesmen performed important maintenance work to ensure electrical supply, often around the clock. In February 1985, these technicians were all sacked along with the linesmen.

Before the dispute, trades assistants had been trained on-the-job under the supervision of experienced cable jointers. They also received theoretical instruction off-the-job. After the dispute was lost, SEQEB management, supported by government, no longer resourced this means of retaining skills.

As part of its project to ‘rationalise and modernise’ electricity supply, both SEQEB and Government preferred to import skills from offshore rather than invest in local technical training. This importation of skills from overseas is akin to the current practice in the Australian health system where overseas trained doctors are recruited to overcome the shortfall in local medical training.

After the 1985 dispute, SEQEB management led by Wayne Gilbert employed technicians on different wages and conditions, some on poorer conditions under individual contracts called ‘voluntary employment agreements’ and the rest on collective agreements.

SEQEB management cut cost of maintenance wherever it could.

Also, when the government amalgamated the Brisbane City Council electricity department with the Southern Electric Authority, government funding did not go into re-skilling.

As a result, the system was not maintained properly, transformers and cable fell into disrepair and ultimately failed. This led to a crisis in the electrical system culminating in frequent blackouts especially during summer.

It took twenty years of National and Labor party governments to fill maintenance positions in the power industry left vacant by the linesmen, cable jointers and trades assistants who had been sacked by Bjelke-Petersen — and then only after complaints by business about power failure.

As for the great moderniser, Wayne Gilbert, he went to New Zealand to become the CEO of a privatised power company, Mercury Energy. This company supplied electricity to the capital, Auckland.

In 1998, Auckland experienced a failure of its cables supplying the inner city resulting in an unprecedented loss of power to the city for over a week. During a subsequent inquiry into Mercury Energy, Gilbert died of a heart attack.

Historically the ALP has always supported the conciliation and arbitration system. These institutions are biased in favour of the employer. The ALP will go no further than this to defend unions. The arbitration system weakens unions because it takes out of workers’ hands decisions about their jobs and conditions. The ACTU argues for collective bargaining rights, but decisions by the collective are constrained by the arbitration decisions which bind unions and the ACTU. This constraint on members decisions is one cause of reduced participation and ultimately a decline in union membership and democracy within unions. Put another way with legal recognition has come the IR club that puts the deals between union officials and employer representatives at the forefront of unionism. Such a strategy is based on trade-offs and alienates the membership from their union leaders.

2. Defy the laws in a piecemeal way

The half-hearted approach

The mass education campaign approach taken by the ACTU is an example of this option. Occasionally a protest action is called by the leadership. Like the peace protests of recent years, protests have disarmed workers as they were carried out in isolation. They are more a struggle for ideas and the moral high ground, not a struggle for power.

One example of the piecemeal strategy is the Queensland Council of Union’s (QCU) limited industrial strategy, put into action just after the WorkChoices legislation was enacted on 27 March 2006. [3]

The strategy is limited because it places constraints on industrial action until after the 2007 federal election. There is some flexibility allowed here, depending on who is talking. There is a lack of consistency. However the QCU general secretary conceded at a combined delegates meeting on 5 April 2006 that ‘there will be a blow-up at some point and when that happens it will be all hands on deck’.

The QCU general secretary did not elaborate what she meant by ‘blow-up’ and refused to call a general stoppage on 28 June 2006. On the other hand, ETU state secretary Dick Williams at a public ‘Light the Fuse’ rally in Brisbane’s Roma Street Forum on 7 April 2006 said, to the applause of the 2000 members of the five unions present (AMWU, ETU, Plumbers’ union, CFMEU and BLF):[4]

“I do not shy away from calling the 28 June rallies a general stoppage.”

His Labor confreres looked on nervously as the rank-and-file cheered. It was reminiscent of the 1982 general strike called against Bjelke-Petersen’s Right-to-Work legislation. That legislation carried much of the same restrictions on the right to organise. The Trades and Labour Council (TLC) called the whole stoppage off by sending state secretary of the BWIU (Hugh Hamilton) out to inform the assembled workers at the Roma Street Forum. Would Dick Williams be forced to eat his words by the QCU? The ETU in Victoria also supported a general stoppage but the ACTU had been careful to call it a national protest.[5]

Where did the piecemeal strategy come from?

Knowledge of this strategy has been gleaned mainly from reports received from workplaces, from public rallies and meetings. These include reports from a well attended local government union meeting conducted on 28 March 2006 by representatives of the Australian Services Union (ASU), Transport Workers Union (TWU) and Australian Workers Union (AWU). Also the QCU strategy is confirmed by piecing together discussions, articles of union resistance and through listening to speeches by the QCU general secretary and Dick Williams (state secretary of the ETU (Qld)) and union lawyers.

The piecemeal strategy appears to have been discussed and settled upon by the QCU executive. But this account is not based on direct knowledge of discussions in the QCU executive for the simple reason that the content of those discussions has not been made available save for some brief comments from Dick Williams (both QCU and ETU) at the Brisbane Labour History Association (BLHA) conference in February 2006.

No doubt much of this strategy has been discussed in the ACTU executive. To that extent it is a coordinated strategy but, as events that occurred after the introduction of the WorkChoices laws have revealed, it is very much a response to actions taken by employers and government.

For example, the QCU general secretary, Grace Grace, has claimed that the Cowra meatworkers sacked after the introduction of the WorkChoices laws and then re-instated got their jobs back as a result of the media coverage obtained by the union media campaign. However there was no discussion of the part played by the local meatworkers’ union in the backdown. The workers were already unionised and they had collective agreements which made it hard for the employer to sack the 29 meatworkers without provoking action by the other 180 workers employed at the Cowra meatworks. However there was no discussion by the leadership of industrial action in response to the sacking; union militancy would not look good on the evening news.

There is direct evidence that this strategy may be employed by a number of unions mentioned above. The Electrical Trades Union (part of the Communication Electrical and Plumbers Union (CEPU) appear to have adopted the strategy. How far these unions have put it into action is still unclear at the time of writing.

Some corrections by the unions may be necessary after response by employers and government. An important element is the protection of union assets. At least one union has placed its major assets in a trust to prevent interference by employers or government in the event of industrial action.

The above strategies require commitment from the rank-and-file but it is still a top-down process. This means that the architects of the strategy are the officials of the unions and peak body named above, together with their legal advisors. There has been little rank-and-file input so far; however, this is likely to change when members are asked to vote on the agreements. All the proponents of the strategy appear to be ALP members.

Victorian Trades Hall Council held a meeting in Melbourne on 29 March 2006 and passed a motion which included this clause:

“This meeting calls on the union movement to step up its defence campaign and supports a mass mobilisation for the next national day of protest set down for Wednesday 28 June 2006, as part of the ongoing industrial and political strategy. This strategy also includes the union movement working with their local communities to enhance their support for the campaign to oppose the legislation and ultimately defeat the Howard Government.”[6]

Elements of piecemeal strategy

This industrial strategy is subservient to an overall electoral strategy where the ultimate object is to have the WorkChoices legislation sorted out in the next Australian parliament. The piecemeal approach does not preclude protest demonstrations or the threat of industrial action. Street demonstrations are only a small part of the strategy. In some places (like Melbourne), taking to the streets may play a larger part but will always be subservient to the electoral objectives of the ALP.

Some unions have increased their membership through their opposition to WorkChoices. Membership increases in the ASU and ETU (for example) are quite strong and others may follow. However these new members are joining in a time of crisis, are inexperienced in the hardship of struggle, and may lack solidarity. They may be joining mainly for self preservation.

The QCU’s limited industrial strategy contains these main elements:

Deeds to defend union organisation. Unions have asked employers to sign a ‘deed of arrangement’ (a contract) that includes the existing conditions that are now specifically prohibited by the WorkChoices legislation.

Under this proposal these deeds of arrangement will include some or all of the prohibited matters listed below.

According to Division 7.1 of Part 8 of the Workplace Relations Regulations 2006, a term of a workplace agreement is prohibited content to the extent that it deals with the following:

i) deductions from the pay or wages of an employee bound by the agreement of trade union membership subscriptions or dues;

ii) the provision of payroll deduction facilities for the subscriptions or dues referred to in paragraph (a);

iii) employees bound by the agreement receiving leave to attend training (however described) provided by a trade union;

iv) employees bound by the agreement receiving paid leave to attend meetings (however described) conducted by or made up of trade union members;

v) the renegotiation of a workplace agreement;

vi) the rights of an organisation of employers or employees to participate in, or represent an employer or employee bound by the agreement in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer’s or employee’s choice (?);

vii) the rights of an official of an organisation of employers or employees to enter the premises of the employer bound by the agreement;

viii) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;

ix) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;

x) the forgoing of annual leave credited to an employee bound by the agreement otherwise than in accordance with the Act;

xi) the provision of information about employees bound by the agreement to a trade union, or a member acting in a representative capacity, officer, or employee of a trade union, unless provision of that information is required or authorised by law.[7]

Such deeds will be questioned by employers and may be tested by them in the courts. The employers argue that under the WorkChoices legislation the unions cannot enforce new contracts that contradict the abolition of allowable or prohibited matters. These conditions are crucial to the ability of a union to organise. This common law deal is to bind the employer on matters specifically prohibited by the new legislation. The parties to common law agreements are the employer and the union. The union members are excluded from such agreements under common law.

These deeds do not challenge WorkChoices, but work around it by using existing industrial and legal instruments such as common law agreements to overcome the loss of award conditions under WorkChoices.

One union industrial officer put it this way:

“Deeds of agreement are, by and large, being obtained quite readily from employers. The enforceability of these Deeds is rather questionable from a legal standpoint. Only the union and the employer are parties, not members. A member cannot enforce the deed. A union could sue in the common law courts if a term of the deed is not observed. But what is the measure of the damages lost by the union (as opposed to the member)?  And what if the right in question relates to an employment condition rather than (relating to) an amount of money?  There are real problems with any reliance upon deeds of agreement. Employers signing the deeds are telling unions that they are happy to conduct their affairs in the same way as before the introduction of these new laws. However, this may simply be a ‘wait and see’ strategy as employers sit back and let someone else take the running.”

Unions acting as employee advocates

Unions will set up an incorporated association to negotiate on behalf of members who have been offered AWAs. The object of these negotiations is to bring all the conditions negotiated in enterprise bargaining agreements into AWAs so that no union member is disadvantaged as a result of the employer opting to use AWAs as an instrument of their employment.

The WorkChoices legislation says that AWAs abolish all prior award conditions. The employer, under pressure from the union for a collective agreement with previous awards, may decide to use AWAs. The use of the union as a bargaining agent to negotiate individual agreements compromises the collective principle of unions. Besides, AWAs that contain conditions won in collective bargaining are merely a backdoor way to overcome the abolition of the no disadvantage test.[8]

Benefits

The main appeal of this strategy is that the unions do not risk all. This was also the strategy employed in the 1998 MUA dispute. Pickets defied the Victorian anti‑assembly laws at Swanston Dock but the MUA refused to pull out P&O workers in solidarity with the locked out Patricks workers. Also the MUA did not call for support from other unions offering industrial action.

In this strategy the main actions, like pickets, are mostly spontaneous and as a result do not involve central planning. However to be successful much planning is required. Picketing is an action which blocks entry. It is a defensive line to deter scabs, and it is more than a protest action. Real pickets are unlawful in Australia, banned by the Trade Practices Act, as well as the WorkPlace Relations Act and its WorkChoices amendments.

In the MUA dispute in 1998, pickets were more like protest. What we mean here is that the ACTU executive did not engage in the organisation of what picketing there was, they limited themselves to protest. Where pickets blocked entry, this was arranged by union organisers, rank-and-file workers and community support groups. So whatever Bill Kelty actually meant when he said there would be ‘the longest picket line in history’, the actual pickets only came about as a result of rank-and-file organisation. Kelty merely joined in after the organisation had already been done by others (See The Long Night in the chapter on the MUA dispute).

In the piecemeal approach there is little disciplined, organised and systematic co-ordination of defiance of the laws. This was evident in the defiance of anti-picketing laws in Sydney where workers, acting spontaneously, tore up railway tracks, and welded barricades in front of wharf gates. There is little effort committed to political organisation; workers are left to their own devices, often acting spontaneously without planned political support of their actions. It is the workers who will wear the repression. This may reduce legal sanctions for the unions or their peak body. For example, The ACTU were distanced from the 1998 MUA pickets by court rulings. One of the ACTU’s main lawyers in the MUA dispute claims that he was banned by the court from attendance at the pickets, and took no part in haranguing scabs.[9]

The QCU and its affiliates delayed action against WorkChoices until legislation and regulations were enacted before beginning the marginal seats campaign and isolated protest action. The repressive laws against the building unions had already been enacted in November 2005. However some unions, such as meatworkers and building workers, did take the precaution of trying to get their EBAs signed prior to the introduction of the WorkChoices legislation. The QCU for the most part waited to see what effect WorkChoices and associated legislation would have in the electorate before adopting any form of opposition strategy.

Risks

Industrial action under this strategy is limited. It is designed to maintain current conditions and thereby to limit calls by rank-and-file workers for strikes. One such call was made at a combined union delegates meeting at the TLC building in Brisbane (both QCU and ALP headquarters) on 5 April 2006. Delegates attempted to put a motion demanding the QCU call a 24-hour stoppage on 28 June 2006. The QCU general secretary called the motion out-of-order and would not countenance industrial action. The QCU general secretary was supported by the general secretary of the Queensland Teachers’ Union. The ETU delegate made an apology to the meeting that no motions could be put. All was to be subsumed under the tactic of winning marginal seats in the next federal election. The QCU general secretary then spent 40 minutes filibustering.

How long will the rank-and-file put up with such tactics?

The QCU general secretary showed PowerPoint slides outlining to union delegates the results of polling that had been undertaken by the ACTU in marginal seats. This presentation highlighted the positive aspects of this polling that showed the current Federal Coalition Government to be unpopular in those seats because of the current IR reform (WorkChoices legislation).[10] Industrial action by workers was not condoned; all energy was to be focussed on the ballot box. If strikes were unavoidable they too had to play a role in the election of an ALP government.

One third of Australian workers, outside the union loop, have their wages set through unsigned unregistered agreements. Some of the conditions in these agreements are there because of the flow-on effect of union campaigns. However many of these agreements contain sub-standard conditions and wages, especially in retail and services industries where casualisation is widespread. In effect, these conditions, imposed by employers, are outside the regulatory system of government or union. Workers under these agreements are the working poor and will remain that way unless unions find a way to organise them.

Such workers, through desperation, can break the demand for better conditions by organised workers. This is the current government’s intention. The working poor in Australia number 1.8 million. These workers make less than $27,716 a year (2/3 of the median wage). In the decade of the current Federal Coalition Government the number of working poor increased by 50% from 1.2 million workers to 1.8 million workers.

Some workers cannot afford a phone, a car, petrol or registration fees for the car, or even to go to the pictures because it may mean less for food. They cannot afford dental care or school excursions for their children. These people may not be as materially deprived as people were in the Great Depression but during the period of the current Federal Coalition Government they have been surrounded by the rising wealth of many Australians.[11] The introduction of a Fair Pay Commission designed to lower the minimum wage places even greater hardship on these workers. Division between workers follows such inequality. Guest workers are being brought in to further reduce wages. Exploitation increases. These workers are not even permitted citizenship rights.

A piecemeal approach is high risk

The high risk nature of this strategy becomes apparent when you consider it depends on a federal Labor government being able and willing to ‘tear up’ WorkChoices and other anti-union legislation. This is something that the ALP has been unable to achieve in the 13 years that it was in government in the 1980s and the 1990s. The laws against secondary boycotts, so effective against the meatworkers and the MUA, were retained on the statute books under Labor. The Accord policies diminished the effectiveness of unions and they lost members in droves during the same period. The unions may increase their membership during the period of opposition to the WorkChoices legislation; they may continue to supply resources and funds to the ALP, but this will come to nought if union members find Labor does not get rid of legislation that threatens their jobs and conditions.

In Britain the failure by New Labour to protect workers and their unions from economic rationalism led to the formation of new political parties. The miners had been loyal to the British Labour Party after their crushing defeat by Thatcher in the year long miners’ strike of 1984-85. However the miners’ union leader, Arthur Scargill, later set up the Socialist Labour Party when New Labour in government continued the policies of Thatcher. A Scottish Socialist Party was also formed and had some success. Ken Livingston, the mayor of London, won against the official Labour candidate and was quickly re-admitted to the Labour Party. The Socialist Alliance (SA) and Socialist Workers Party (SWP) both (initially at least) attracted some support from those disenchanted with the Tory policies of New Labour. But many British workers became distrustful and disenchanted, unable to believe any political solution was possible.

Elsewhere in the world left-wing governments in Latin America, in Venezuela, Bolivia, Ecuador and Argentina, have been elected and may yet challenge the imperialism of the US in the region.

In France during March and April 2006 there were two general strikes against the introduction of new IR legislation making it easier to sack young people. The student worker alliances created during this period reflect the strength of French socialist parties in the union movement there by defeating these laws.[12]

Unfortunately, Australia may adopt the British model and not come up with its own solution to defeat economic rationalist governments of Liberal and Labor.

Where there is strike action by one group defying the laws they may be easily isolated from the other unions. This may reduce ability to defend the actions both industrially and legally. At least one organiser and some rank-and-file members were blacklisted and were forced out of the industry during the 1998 MUA dispute. One organiser in Brisbane did not work for four years. This is the risk now for unions like the BLF, ETU and plumbers union. It is the organisers and officials who will be hit by large fines. Can they withstand the pressure? Or will they desert their membership and look for an easy way out?

3. Defy the laws in a concerted campaign

An uncommon approach

This strategy presupposes the only weapon that workers have to stop the government and employers’ attacks is their unions’ industrial power. It recognises that union power based on collective bargaining is stronger than organisation based on enterprise bargaining. In contrast acceptance of AWAs leads to no formal organisation of workers.

The concerted defiance strategy means that the restriction on union entry is met by forcing entry. Even ALP leaders could be encouraged to defy the laws. During 1977-78 in Queensland some Labor leaders defied the street march ban and were arrested. These included former cabinet minister Tom Uren, Senator George Georges, future Queensland cabinet ministers Anne Warner and Matt Foley, and NSW Labor Council secretary John Ducker.

Such defiance could be used as a springboard for opposition to the laws of secondary boycott and on the restrictions placed on the right to strike.

ACTU leaders have protested to the media that the unfair dismissal laws in place after WorkChoices are bad. Yet under the unfair dismissal laws of 2003 (prior to WorkChoices) there were only 42 reinstatements out of the 8,000 determined by the AIRC to be unfair dismissals.

It is the loss of collective bargaining under both ALP and Coalition governments that has greater impact on the lives of 12 million workers in Australia. The collective strength of the union will challenge the power of the master far more effectively than an industrial relations commission.

Campaigning in marginal seats has been another tactic put forward. Unions could encourage ALP politicians to demand access to the workplace to speak with workers about the issues that concern them. This would require a defiance of WorkChoices legislation. It could be cast as a political issue of free speech where the legislation can be tested without the penalties that accrue in the industrial situation. It can be used as a cover for union organisers who need to access the workplace on a daily basis and would take some of the heat off them if they accompany politicians defying the bans on entry.

The loss of overtime and penalty rates can be challenged by workers refusing to work on weekends and public holidays. How can many employers function without labour at these crucial times in the current capitalist economy? It is difficult to categorise such action as a strike and difficult to impose penalties on the unions and their organisers. The loss to workers is reduced because they only lose their penalty rates by refusing to work overtime and on weekends. Once again this may be a platform for further industrial action.

To defy the laws in a concerted way requires the building of workers’ political organisations.

Benefits

Done properly, with a well thought-out plan by militant sections of the union movement to organise against employers in specific industries – say, the wharves or coal mines – an all-out assault in targeted areas could have a two-fold benefit:

(1) Demonstrate the ineffectiveness of current workplace legislation.

(2) Demonstrate the insipid character of much of the current union leadership and the need to change it.

Another benefit is that by people working and organising together a strong union is created. Solidarity benefits those who participate and helps spread the notion that power resides in workers’ hands. Leadership can no longer be imposed by outside organisations, leadership emerges from within the rank-and-file. Cohesive organisation that is difficult to crack is developed.

Risks

Quite apart from the obvious risks from a clash with the state armed with its anti-worker legislation, the greatest danger lies in major rifts among unionists themselves. Because of the inexperience in industrial action over the past 20 years, it is certain the state will come down hard. How the strikers deal with these attacks will be a test for all.

Mainstream leaders, everyone from Hawke to Combet, have accepted the ‘right’ of the capitalist system to exist.

Yet under them are trade unions that are institutions determined to defend their proletarian status. Craig Johnston from the Manufacturing Workers Union was among those who attacked the front doors of parliament house during a demonstration in 1996.

Former ACTU president Jenny George was a leader and speaker at that demonstration.

In an interview with the ABC’s Geraldine Doogue, the ACTU president deplored the behaviour of the militants, distanced herself from their action and described this as probably her worst experience as a union official. Thus, mainstream leaders are unlikely to lend support to militants waging an all-out assault and may even be ready to construe their efforts as pro-terrorist.

There are practical ways in which division and isolation can be overcome in the concerted campaign. Two examples are outlined below. The first, about forming a strike committee is a lesson from the 1985 SEQEB dispute in Queensland. The second on how to form a union support group, is from the 1998 MUA dispute.

The Strike Committee

Bernie Neville, an experienced unionist and member of the 1985 SEQEB workers strike committee, says this about forming a strike committee:

“In any dispute, the first priority of the rank-and-file is to form a strike committee. This committee must be in full control of the rank-and-file, even to the exclusion of union officials, the reason being, the officials may have a different agenda to that of the rank-and-file. For example, some union officials have a stronger allegiance to the ALP than the union. At the same time as the formation of the strike committee, it is advisable to form a committee of spouses of the striking workers. Here again, there must be no interference by spouses of the union officials for the reasons previously stated.

You must give spouses control of any strike relief money received by families in dispute. The aim of this action is to ensure that the welfare of the children is the first priority. Parents who fear for the welfare of their children may not support strikers in disputes. This will put pressure on some strikers to withdraw from the dispute.

The strike committee must at the outset produce and distribute a strike bulletin. The bulletin must report all the actions and problems that arise through the dispute. The bulletin will also be a platform for the rank-and-file to voice any concerns and fears at the direction which they feel the dispute may be taking.

Seek out counsellors and nutritionists to advise families on any problems they may have. The role of the nutritionist would be to make sure that the food provided through union distribution was of high nutritional value. Being involved in a dispute is very stressful and, if you neglect the body, morale will nose-dive.

The strike committee must meet on a daily basis, and must also be in daily contact with elected union officials. The purpose is to advise them of any actions or activities being planned by the strike committee.

Do not allow any containment of the dispute by officials or politicians. Spread out and embrace all support and any talents outside of your union which can be used e.g. artists, writers, printers and academics. Strike committee members must be allowed to visit other work-places and university campuses to get their point of view across.

Beware the politician and the would-be politician. Both have a different agenda to the workers. During the SEQEB dispute a union official of the Metal Trades Union had his eye on a Senate seat. With this in mind he did everything in his power to help shut down the dispute, because of the damaging effect it was having on the ALP. He eventually got his seat in the Senate after the dispute. This former workers’ representative, after being told by a member of the bar staff that it was after hours, and that she could not therefore serve him liquor, proceeded to abuse her and call her a fat wog. It would seem that racism and sexism can be common among union officials. All efforts must be made to eliminate these attitudes.

Despite all the efforts of the Hawke government, Kelty and Crean, the ACTU and sections of the trade union movement, who all wanted to accept sackings in the first few weeks, a well organised group of rank-and-file managed to continue action for 18 months demanding re-instatement of all the workers. Finally, the men decided that there was no possibility of winning the dispute. Hughie Hamilton announced in the Sunday Mail that it was over.

The state ALP had promised the men that they would get their jobs back when the ALP government came to power. They are still waiting.

The lesson learnt from the 1985 SEQEB dispute—BEWARE FALSE UNITY”

How to form a Union Support Group

While the union struggle demands that the leadership come from union members and their union, there are additional actions that their supporters can consider. These actions can be done in consultation with the union, but require levels of organisation and cooperation which have been lacking in recent years. Action in the broader social sphere could be decisive in ensuring victories for the union and have broader implications for workers around Australia.[13]

Here are some useful points to be considered in forming a union support group:

1. call a public meeting to organise a support group;

2. develop, in consultation with the union, an organised presence at the picket lines including an information tent;

3. co-ordinate participation in the picket by interested people;

4. produce a strike bulletin;

5. help co-ordinate donations to the sustenance of the strikers;

6. organise meetings of support in workplaces, universities, public forums; and,

7. agitate for the rescinding of anti-worker laws like the Workplace Relations Act and the secondary boycott provisions of the Trade Practices Act.

Organising a political support group would, of course, produce a dynamic between the union and its supporters and have to be handled carefully to maintain trust. On the other hand it may provide the basis for new working class activity. This may create opportunities not simply to fight the attacks by capital and government but to allow workers to seek new horizons beyond the narrow ravine of wage labour. The wages system itself needs to be challenged, for it keeps the worker servile to the master.


[1] WorkChoices legislation – 116B Matters that are not allowable award matters.

[2] SEQEB = South-East Queensland Electricity Board

[3] The QCU is the representative of the ACTU in Queensland.

[4] Light the Fuse rallies were a series of rallies throughout Queensland conducted by the five unions listed in the text above. They were divided into three regions North, Central, and South-East Queensland. They commenced in the North just after Cyclone Larry devastated North Queensland towns like Innisfail.

[5] One ETU worker was heard at the rally to yell out over noise of the PA: ‘The ACTU are like Diary Farmers, they milk the workers.’

[6] The full motion passed could be viewed at this website on 11 April 2006. See http://www.vthc.org.au.

[7] Prohibited content in workplace agreements in Division 7.1 of the WorkChoices legislation.

[8] Labour Law – an introduction by Creighton and Stewart, Federation Press 2000, 3rd Edition, at p422 in [13.100] ‘Under the earlier Workplace Relations Act 1996 there was provision, in theory at least, that unions could always bargain upwards from the wages and conditions set by existing awards which are now regarded as a safety net.  Interestingly there was never any test case in the AIRC that defined exactly how the NDT was to be applied.  Was no worker to be worse off or were the conditions for workers across the board not to be undercut.  In practice there were trade-offs where some conditions were improved at the expense of others despite the power of the AIRC to refuse to certify an EBA where workers would be disadvantaged by the loss of those conditions traded off.  During the nine years of its operation under the WRA 1996 AIRC took a conservative stance preferring to stay on side with government and employer than to support the rights of workers.’

[9] I didn’t do that: waterfront lawyer by Dan Box, THE AUSTRALIAN, May 14, 2007

[10] Your Rights at Work Worth Fighting for — UNION IR UPDATE 2006 ISSUE 1 available at http://www.nswactieu.labor.net.au/campaigns/general/253.html (url checked on 29 December 2006).

[11] Living Low Paid: Some Experiences of Australian Childcare Workers and Cleaners Helen Masterman-Smith*, Robyn May**, Barbara Pocock* This report arises from a project funded by the Australian Research Council and the Brotherhood of St Laurence, Liquor Hospitality and Miscellaneous Workers Union (LHMU), SA Unions, Unions NSW and the Victorian Trades Hall Council. See http://www.lowpayproject.com.au (url checked on 29 December 2006).

[12] Story from BBC NEWS: http://news.bbc.co.uk/go/pr/fr/-/2/hi/europe/4895164.stm (url checked on 29 December 2006).

[13] A union support group may be a Workers’ political organisation.

After the Waterfront

Long before WorkChoices, industrial relations and other laws were anti‑worker. The law recognises workers as the subjects of capital. The system relies on workers’ compliance — forced or misled, stick or carrot.

Unions have already begun to oppose such laws more rigorously. But what strategies are to be followed?

1. Accept the IR legislation and the current system

Reform the laws through parliament

The union movement currently operates, by and large, through the system of industrial law. Even the Patricks dispute saw very little organised defiance of laws, unions putting great emphasis on a legal approach. As time is beginning to show, the legal victory in that dispute was not necessarily an advance for workers.

One risk in constantly trying to play the game, and use the rules to the workers’ advantage — resting on the belief in the ‘independent umpire’ — is that the unions are likely to…

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