The Guardian 26 October, 2005
Government/Big Business offensive:
"Agreement" takes on a new meaning
Anna Pha
The Howard Government’s WorkChoices (read Bosses’ Choices) document contains 67 pages of densely written, repetitive and misleading information on the legislation it plans to introduce to Parliament by next week. One of its contradictions — arising out of the fundamental class contradiction — is that it promises workers "prosperity" and "higher wages" by outlawing what means of protection workers have and by reducing wages and slashing working conditions. The award safety net will be replaced by four legislated minimum conditions and a minimum wage set by a low pay commission
(see last week’s Guardian for details).
Enterprise bargaining agreements (EBAs) will be phased out as they expire or are replaced with what the Government calls collective agreements or individual agreements (Australian Workplace agreements — AWAs). EBAs were collectively negotiated, in most cases by trade unions and applied across a workplace to particular categories of workers (e.g. clerical workers, maintenance workers, cleaners). Unions could become party to a non-union EBA. Under the "no disadvantage test", EBAs were not to leave workers worse off than under the relevant award. The award provided a safety net of minimum wages and conditions.
The new system will have five types of collective agreement. These "collective agreements" being proposed by the Government differ considerably from EBAs in how they may be reached, their contents, who they cover and their relationship to AWAs and awards.
Divide and rule
Union collective agreements: negotiated by trade union(s) with employers to cover wages and conditions "of the group of employees in the workplace the union is negotiating on behalf of".
Not all of those wishing to be represented by the union need be members of the trade union — the union is a bargaining agent acting on behalf of specific workers who specify in writing that the union is their agent. The agreement will only cover those specific workers.
Employee collective agreements: non-union agreements for wages and conditions which could be made between a group of workers and their employer in a workplace. The workers could negotiate the agreement themselves or be represented by a private bargaining agent. Unions would no longer be able to be party to non-union agreements.
There is no legal requirement for non-union and union agreements, or AWAs, to meet award provisions. These agreements replace the award. The only legal requirement is that they meet and are kept up to date with the four legislated conditions and minimum wage that constitute the so-called Fair Pay and Conditions Standard.
These groups could be any size. There could many such groups in a workplace. For example, in a hospital, nurses working alongside each other doing the same work, could be employed on different collective agreements or AWAs with different wage rates, allowances and penalty rates. Such a situation opens the way for blatant discrimination and intimidation of workers.
(Furthermore, professions such as nursing and teaching will be hit hard under the Government’s system, as recruitment will become almost impossible with the resultant reduced wages and conditions.)
It is not difficult to imagine which workers are offered the overtime, which are given the more social hours to work, or how an employer might set about driving workers off union agreements onto inferior non-union agreements or AWAs. In workplaces with 100 or less employees, employers, exempted from unfair dismissal laws, will have the freedom and flexibility to arbitrarily sack workers. In such circumstances women become even more vulnerable to harassment than ever.
Race to bottom
The aim is to provide bosses with the means to smash the uniformity of wages and conditions of workers with similar skills and experience doing similar work within a workplace and between workplaces. Unions fought hard to ensure that all employees, union and non-union, would be covered by the same award provisions to prevent such a situation which seriously weakens their capacity to protect workers.
The unity of workers and the strength of the union are vital in protecting wages and conditions and jobs. And this is what the Government is attempting to undermine.
The legislation not only sets out to split workers but opens the door to inter-union demarcation disputes and the intrusion of company or bosses’ unions. This could be particularly the case following the "rationalisation" of the award system.
The Australian Industrial Relations Commission will NOT be involved in certifying union or non-union agreements or AWAs. They will be lodged with the Office of the Employment Advocate (OEA), along with a statutory declaration that they were "negotiated in compliance with the law". And who judges that? The same boss who is imposing them on workers!
The only legal requirement is that their contents do not fall below the nationally set minimum wage and four legislated conditions — the new Pay and Conditions Standard.
The "no disadvantage test" is abolished. The employer provides the AWA, the worker signs it or doesn’t have a job.
"This lodgement only process will reduce delays and uncertainty for employers and employees at the workplace." But what sort of "certainty"? Employers can be certain of dictating wages and working conditions and workers can be certain the boss is going to strip their rights and reduce their wages.
As for market forces, where a skill shortage or too miserly an offer meant workers and their trade unions could drive wages and conditions up, the Government is taking measures to ensure that won’t happen.
It has plans to import cheap skilled labour on special temporary visas, with the visa made conditional on the job — thus giving employers a licence to brutally exploit foreign workers. This has already been done in the building and construction industry and the latest government proposal is for "au pair girls" to help "meet the childcare needs of middle class families".
Union greenfields agreements: employers can choose to negotiate collective agreements for new businesses, new projects and undertakings that do not yet have employees. Employers can choose the union to negotiate with, one that would cover future employees there. This opens the way for employers to invite employer-created(company) unions or right-wing boss-friendly unions to move in and create demarcation disputes. This will be particularly the case following the "rationalisation" and reduction in the number of awards that is planned.
Boss negotiates agreement with boss
Employer greenfields agreements: these take the cake in the misuse of the word "agreement". The Government says, "These agreements have all the same characteristics of union greenfields agreements with the exception that the employer makes the agreement without negotiating with a union." The employer makes the agreement with him or herself! And then it is binding on the workers. Howard gives a new meaning to the word "agreement".
This of course is what the Government and employers would like to see apply everywhere — straight out dictatorship of wages and working conditions — a return to the master servant days of the 19th Century.
In this case there is no pretence of protecting workers. It is simple, very simple, and that is where Howard and his employer patrons are trying to take Australia.
Any workers accepting a job on a union or non-union greenfields site would be bound by the union or employer "agreement" for up to 12 months. Only after that can workers apply for a bargaining period and vote on taking protected industrial action in support of a new agreement. Big business is not happy with that. They want greenfields agreements to have a life of up to five years as applies to other agreements. Only the political difficulty of explaining such an outrageous proposition prevented the Howard Government from including it here and now. (But watch this space!)
Multiple business agreements, pattern bargaining and agreements spanning workplaces which are used by trade unions to maintain uniformity of wages and conditions are banned. But, at the request of its business mates, the government has agreed that in special circumstances such as for franchises the employer may be able to gain approval for a common agreement across workplaces.
Terminator laws
An agreement (collective or AWA) made under WorkChoices that has passed its expiry date may be terminated by either party to it by giving 90 days written notice (to be lodged with the OEA). If the agreement is not replaced by another agreement, the minimum terms of employment are those specified in the UnFair Standard, not the award.
An employer could, in one fell swoop, wipe out almost all the provisions of an agreement by giving notice and then refusing to sign another agreement. Any wages or conditions above the minimum standard would be voluntary on the part of the employer. The outcome would depend on the strength of the union in that workplace, and the Government is introducing a number of serious measures to make an effective union presence as difficult as possible to achieve.
In the case of an EBA made under the current system being terminated, the fallback position is that of the Pay and Conditions Standard and award. It can be terminated in accordance with its own provisions and the old legislation.
This is hardly an attractive alternative as wage rates in existing awards are minimum rates and these will have been frozen. Existing awards will not be changed in line with decisions of the new Pay Commission. The aim is to force worker out of awards onto AWAs or collective agreements.
It means that workers or unions attempting to negotiate a new agreement will be doing so under duress, with their wages and working conditions gutted, creating a situation of urgency to accept a new agreement. It would become begging, not bargaining.
Regardless of what successes unions have in negotiating an agreement and regardless of its expiry date, the employer may at any time "negotiate" AWAs and new collective agreements with any of the workers covered by that agreement and future employees. AWAs override collective agreements and awards. Collective agreements override awards.
Howard and big business are out to take back past gains and cripple trade unionism. See article for attacks on trade union rights.