The Guardian 26 October, 2005
IR offensive at a glance:
Compliance — by trade unions
Anna Pha
As employers are given more and more choices and freedom to dictate terms and conditions of employment the screws are tightened on workers and trade unions with a tough new compliance regime.
Freedom from association
Existing provisions on "freedom of association" are strengthened to make it almost impossible for trade unions to recruit and organise workers without breaching the Act. On paper it will be illegal "to dismiss or otherwise victimise an employee because he or she is or is not a member of a union". But that is where it stops. In practice, under the new provisions for agreements and exemption of most employers from unfair dismissal laws, it will be easier than ever to sack union members because of their union affiliations. Any pretext will do as far as the new laws are concerned.
There is a long list of trade union recruiting and organising practices that are outlawed. These are designed to make it more difficult for trade unions to recruit members and ensure that, once a decision is made, all members take industrial action. They prohibit measures to "coerce" someone to be member of the union and outlaw any action or threat of action on the basis of someone not being a union member.
The definition of "threat" will be widened "to incorporate a threat of any kind, whether direct or indirect, express or implied". The wording is so broad that almost any attempt to convince a worker to join the union could be construed as coercion.
Workplace police
There will be a special workplace police force — known as the Office of Workplace Services (OWS) which will be responsible for enforcing the new Pay and Conditions Standard, awards and agreements. The Government touts the OWS as: "an easily accessible ‘one stop shop’ for all enforcement and compliance activities."
The OWS will be given considerable resources to ensure workers and trade unions comply with the Act — especially in relation to trade union activities including recruitment. Employers and bosses’ stooges will be encouraged to dob in unions and workers who are collectively organising or recruiting in a way suspected of breaching the provisions of the Act.
The Government adds for reassurance: "Whether you are an employee or an employer your rights will be protected under WorkChoices by the Office of Workplace Services (OWS)".
From the limited details provided, the OWS has the makings of new workplace police force similar to the Building and Construction Industry Commission and its predecessor who did little to protect workers. Rather it came to the aid of bosses, spied on and terrorised workers while turning a blind eye to the most blatant corrupt and unsafe practices of employers.
If the Government’s record is anything to go by, then the employers can be sure their rights will be enforced. It is hardly likely to be the health and safety of workers that is being enforced.
The OWS will also have an important role to play in the field of social security. As the Government attempts to force sole parents and unemployed back into the workforce, it will be there to check that job offers complied with the new Pay and Conditions Standard. If a welfare recipient turns down a job that meets that low standard, then they lose their benefits. Never mind if that minimum wage is a fraction of what other workers might get in the same workplace for doing the same work, or if the hours of work are impossible for someone with family responsibilities.
AIRC
The Australian Industrial Relations Commission loses its powers of compulsory conciliation and arbitration but will provide voluntary dispute resolution services in competition with private operators.
It will gut existing awards and form new awards as recommended by a review that is to begin in January. It will supervise and call a halt to "protected industrial action"; deal with right of entry and unfair dismissals; and be responsible for registration of unions and employer bodies.
Office of Employment Advocate
The Office of Employment Advocate, which has already has impeccable anti-worker credentials, will have a greater role in assisting employers with advice and model AWAs to force onto workers. It will become a paper shuffler, receiving but not inspecting or certifying collective agreements and AWAs that are lodged with it by employers.
Unfair dismissal
Businesses with 100 or less employees will be exempt from unfair dismissal laws. In larger workplaces the laws only apply after six months employment, and then do not apply "where employment has been terminated because the employer genuinely no longer requires the job to be done (i.e. operational requirements)". Even in larger workplaces employers will be virtually free to sack workers whenever they like, as long as they do not declare a reason that is unlawful or unfair.
The removal of any form of job protection for workers in small and medium workplaces opens the way for employers to clear out "troublemakers" (e.g. they join their union or insist on safe working conditions), turn over staff very rapidly, drive down wages and conditions, retain a junior workforce (on low, low wages) and harass and stand over workers for unpaid overtime, unsafe working conditions, etc.
In particular, it can be used to force workers off awards and collective agreements and onto individual contracts, which override the other two. There are token provisions prohibiting discrimination on the basis of union membership, pressure being exerted not to join a union. These are not serious, many of them already exist and are not enforced and the new provisions will make them unenforceable.
Transition period
Existing agreements (based on the conciliation and arbitration power of the AIRC) will continue to operate for up to five years. During that period the agreement "will not be able to be varied or extended after the commencement of the new legislation. The agreement will not be required to comply with the Fair Pay and Conditions Standard for the period of its operation." That means any rises in the minimum wage will not be passed on.
There is nothing to stop a new agreement or AWAs replacing it during that period. This is what the government hopes will happen.
The new system applies to those already under the federal system and all other constitutional corporations (incorporated businesses). During the five-year period unincorporated businesses and organisations will need to decide whether to remain in WorkChoices. To do so would involve incorporation. Otherwise they would revert to the state system — in Victoria that would mean remaining in WorkChoices as the former Kennett Government transferred its industrial relations powers to the Federal Government.
Defeating the big business agenda
The process underway by the Howard Government is a gradual one. This is the second stage and there will be more to come after this. By phasing in the destruction of awards and enterprise agreements, and gradually undermining collective bargaining, removal of trade union rights, and attacks on wages and working conditions, there is no one day or month or even year in which the whole workforce is hit.
As agreements expire, as new labour is hired, as workers are sacked, bit-by-bit the changes will take place. This makes it harder for organised labour to fight. But it does not make it impossible.
Individual workers will be very vulnerable, but a strong, united trade union movement could defeat the Howard/big business agenda. So many people, families and organisations will be affected. Some small businesses will find it difficult as they are forced to drive down wages and conditions or go out of business. Truck drivers, for example, have fought hard for their awards, to maintain uniform rates across the industry. When these are wiped, they will be left with huge debts, trucks worth hundreds of thousands of dollars and pressure to work deadly hours. Parents will not have predictable hours of work, cannot take children to school or commit to social and sporting activities. They will not be able to pay the bills, and so on.
The government offers no protection for workers. It goes further than failing to protect workers — it aims to prevent workers combining and organising to protect themselves. Ultimately, the extent to which this legislation is enforced will depend on the strength of the organised working class in their trade unions.
This will require huge education and organising campaigns, massive struggles and the replacement of this government by a government prepared to jettison the legislation and legislate for and protect workers’ and trade union rights. In particular, these should include the unrestricted right to strike, to recruit, to organise, and the abolition of individual contracts and restoration of a centralised system of determining wages and working conditions.
What to do
Join your union if you are not a member. Put your hand up to be active in defeating the legislation. Support your union’s actions and encourage everyone you come into contact with to do likewise. Write to newspapers, get on radio talkback, lobby your MP, Senators and also the Family First Senator, the Labor Party and Democrats. And be there on November 15.