The Guardian 26 October, 2005

Unity of workers
only barrier to employer’s dream

Anna Pha

The WorkChoices legislation offers employers the promise of a lifetime: life without awards, life without all those binding conditions and wage rates in EBAs, those concessions that they have been forced to make over decades of struggle. But something stands in their way: organised labour. Individual workers are powerless in the face of the might of an employer. But workers united in trade unions based on working class ideology and politics are the stuff of nightmares for employers. The Howard Government’s new legislation contains numerous provisions designed to give employers a life without unions and to kid workers they can get a fair deal negotiating on a one-to-one basis with their boss.

The new collective agreements and individual contracts are designed to break the unity of the working class. They are backed up by measures that virtually outlaw all industrial action, attempt to exclude trade unions from the workplace and impose penalties of tens of thousands of dollars or even jail for individual workers (as well as their unions and union officials) breaching the Act.

Industrial action outlawed

Almost all industrial action is outlawed and the procedures for pursuing workers and trade unions in the court system for massive damages claims are speeded up. Access to common law tort relating to "unprotected action" will be immediate — no waiting to see if there is a return to work ordered by the Australian Industrial Relations Commission (AIRC) or a certificate from the AIRC to take action.

There are some "clarifications" of the definition of industrial action to rope in absences from work that are industrially motivated — e.g. illness that is not genuine. Who judges that? Not the worker.

At the same time the definition of industrial action by employers is narrowed — "acts by employers, other than lockouts, are not industrial action (e.g. redundancies or termination of employment)". This enables employers to sack workers taking industrial action without any risk of being ordered to end their action and thus reinstate them. Any other actions taken by an employer to pressure workers into signing an agreement or AWA is not considered to be industrial action, whereas virtually any change in work behaviour by a worker would be.

"The right to lawful industrial action when negotiating a new workplace agreement will continue to be protected", the Government claims. Hardly an honest claim. The right will still exist on paper, BUT the circumstances under which it can be exercised will be severely curbed.

Compulsory secret ballots

It will be compulsory to hold a secret ballot before protected action can be taken. Employees (negotiating a non-union agreement) or the union or unions (negotiating a union agreement) may apply for a secret ballot order. Such an order will only be able to be made:

  • after the expiry of an existing agreement

  • if a bargaining period has been notified to the AIRC

  • only if the action is in support of claims that are not prohibited content in an agreement

  • if no pattern bargaining were taking place

  • only if the employees or union are genuinely trying to reach agreement with the employer.

    If all of these conditions are met, then there are restrictions on who can take protected action — a measure designed to break the principle of "one out all out" and thus undermine the impact of the industrial action.

    "If a union makes an application for a ballot, only union members who are employees and who would be covered by the proposed agreement will be eligible to vote." If the union is also the bargaining agent for non-members, these non-members do not get to vote on whether to take action and cannot take lawful action if such action is endorsed.

    If a non-union agreement is being negotiated by employees (who may be represented by a private bargaining agent) then those employees who will be covered can vote and take lawful industrial action.

    If a majority of those who would be covered vote, and the majority of those voting support the action, it will be legal.

    Ballots will be conducted by the Australian Electoral Commission and authorised private agents. They will be secret and the unions or the group of employees involved will pay for 20 percent of the cost — and the Australian Government will cover the other 80 percent.

    The AIRC will be required to suspend or terminate a bargaining period (and hence outlaw all forms of industrial action) on a number of grounds (as in the Act now) with the addition of three new conditions:

  • if pattern bargaining is taking place

  • cooling off suspensions — where the AIRC believes it would assist the parties to resolve the matters at issue (very useful if an employer is feeling the heat)

  • where third parties (not the employer or workers involved in the dispute) are threatened with significant harm from industrial action

    Third parties could be customers whose services are disrupted, workers in other businesses who may be stood down, parents of students, passengers who use a bus service, and so on.

    The length of a possible suspension will be limited to a maximum of three months!

    The Act already provides for a bargaining period to be terminated or suspended if it is in relation to a demarcation dispute. "If a bargaining period is terminated because it threatens life, personal safety, health or welfare of the population or is likely to cause significant damage to the economy, the matter will be referred to the AIRC for a Workplace Determination."

    There will be new provisions also permitting "the Minister for Employment and Workplace Relations to issue a Declaration where protected industrial action threatens life, personal safety, health or welfare of the population or is likely to cause significant damage to the economy." These are similar to state essential services legislation. The Declaration will terminate the bargaining period and permit the Minister to issue directions to remove the "threat". The determination of the reality of the "threat" posed by the industrial action in question would be entirely in the hands of anti-worker Ministers like Workplace Relations Minister Andrews.

    All industrial action will be outlawed during the life of an agreement or AWA. Only after the nominal expiry date of an agreement is it possible to take "protected" action and thus avoid massive damages costs and fines.

    These provisions not only outlaw almost all industrial action but also impose long delays in the timing which strikes at the very essence of successful action and they give the boss weeks or months to prepare for the action, sack "the trouble makers" — unionists who support it — and stand over individual workers to sign AWAs.

    Trade unions not welcome

    The government stops short of directly expressing its contempt for workers and the desire to get rid of trade unions, but the "Not Welcome" sign is definitely up in neon lights. Instead, it closes in on their rights to recruit, organise and take collective action from every direction. On paper they still have a role. But in practice it will have to be won by hard work and a sustained effort based on a class analysis of society.

    Co-operation with employers as Howard urges workers to do will lead to defeat for the working class. The employers, whose battle Howard is waging, will not let up for one moment in pursuit of their own class interests. Howard’s attack on workers and trade unions demonstrates sharply that the class struggle is alive and well.

    "The key to greater productivity in the workplace is an increased emphasis on direct bargaining between employers and employees" says WorkChoices, as though all employers have their workers’ interests at heart and it is possible for individual workers to negotiate on an equal footing with their boss.

    If you believed Howard and his spin doctors, individual workers can wrest a fair deal in negotiations with the likes of Rio Tinto, Nike, BHP, Accor Hotels, Coles Myer and Mitsubishi and that they will come out of it with higher wages and improved conditions!! The relationship between individual workers and employers is not an equal one. The big corporations hire and fire, own the fruits of a workers’ labour and have powerful state machinery on their side. An employer can always find more workers, but finding another job is not so easy. Anyone knocking back a job that meets the Pay and Conditions Standard will be denied social security payments.

    Only when workers unite, organise and act in unity do they gain the power to be able to challenge and bargain with an employer and stand up for their rights. And this is exactly what Howard is trying to abolish and replace by a divided, unorganised, individualised and desperate labour force where "negotiating" as Howard dishonestly calls it, becomes begging.

    Right of entry

    Unions will still have a right, albeit considerably diminished, to enter workplaces to investigate a suspected breach of the Workplace Relations Act and to hold discussions with workers.

    Union officials will have to pass a new "fit and proper person" test before being granted an entry permit with changes in the conditions of entry. These include:

  • no right of entry for discussion purposes where all employees are on AWAs

  • only allowed to investigate a breach of an AWA if the worker party to it provides written consent

  • union officials must provide the employer with particulars of a breach that he or she is proposing to enter to investigate

  • union officials can only access records of union members when investigating a breach

  • employer can specify location of meeting and route to be taken to it.

    There are a number of conditions under which a union official’s or all the unions’ entry permits may be revoked or suspended (a form of collective punishment). The AIRC will continue to play a key role in this area of enforcement.

    See article this issue for details of the state machinery.

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