Labor's 'Fair Work' cheats workers

By Andrew Martin

The Rudd Labor government’s Fair Work Australia (FWA) bill, passed by federal parliament on March 20, was touted as finally killing off the Howard government’s deeply unpopular Work Choices laws. Work Choices dramatically reduced employment standards by replacing the comprehensive wages and conditions in awards with just five legislated standards.

In its first two years of operation, Work Choices resulted in 62% of minimum wage workers suffering a decrease in their real wages as a result of the Australian Fair Pay Commission’s determinations. More than 4 million workers lost any protection against being dismissed arbitrarily or unfairly.

Under Work Choices employers were not required to recognise unions. For example, employees at Maxitrans Australia in Ballarat sought to be represented by the Australian Manufacturing Workers Union. After months of campaigning, the union won certification as a bargaining agent for its members, but the company still refused to negotiate with the union. Instead, Maxitrans put on the table a non-negotiated deal that sought to strip away many employment conditions.

The gender pay gap widened under Work Choices. On average, women in 2004 earned 87 cents for every dollar earned by men. This had decreased to 84 cents by 2007. Seventy percent of the pay gain for women workers achieved between 1996 and 2006 were wiped off in the first nine months of Work Choices. Industries that employ large numbers of women (such as retail and hospitality) have suffered stagnant real wages or even declines.

‘Major step forward’?

An ACTU press release when the FWA bill was passed stated: “New industrial relations laws passed by the Federal Parliament today are a major step forward for working Australians and the nation. The laws will provide working families with stronger rights and protection in the economic downturn, says the ACTU. They give employees strong collective bargaining rights and represent the beginning of a new era of industrial relations that promises to be good for both working families and the economy.”

ACTU president Sharan Burrow gushed that passage of the FWA bill was “a historic moment in restoring workers’ rights”. However, far from being an overhaul of industrial relations laws to protect workers, FWA carries over much of Work Choices, with many trade unionists branding it “Work Choices-lite”. It is a continuation of the repressive laws that restrict the ability of workers to fight for collective agreements with their employers.

Deputy PM Julia Gillard’s declaration that Work Choices is “dead” is a lie. Former Howard government workplace relations minister Kevin Andrews was more honest, telling reporters last November that Labor “had kept 70% of the Coalition’s policy in its new bill”, adding: “The basic structure of what we had is still there.”

The new FWA laws, which take effect on January 10, 2010, retain significant restrictions on trade union industrial action and on the union officials’ right of entry to workplaces. There will still be penalties for individual workers and trade unions that participate in “unlawful” industrial action. Industrial action can take place only during a legally set bargaining period, and must still be approved in a secret ballot conducted by the Australian Electoral Commission, rather than at a mass meeting of the workers concerned.

Secondary boycotts will continue to be regulated by the Trade Practices Act. For unprotected industrial action, employees will face a mandatory minimum deduction of four hours’ pay. Unprotected action may be stopped by the FWA agency, and workers may be sacked or sued for engaging in it. The FWA legislation allows third parties harmed by industrial action to apply to the FWA, whose personnel will be selected by the Labor government in consultation with Coalition MPs, to have the action terminated.

The bill requires the FWA agency to stop industrial action (whether or not it is “protected” by state laws) by workers outside the national industrial relations system, where the action causes or threatens to cause “substantial damage” to an employer. The federal workplace relations minister also retains the power to terminate industrial action.

Union delegates’ role will still be tremendously difficult because they will still be unable to hold workplace meetings during work hours, and there is no requirement for employers to recognise delegates, nor to provide them with resources (such as access to delegate education, paid time to perform their activity as delegates, etc.).

One of the most contentious issues is unfair dismissals. In a media release, Gillard stated: “On unfair dismissal, we are taking a pragmatic approach that takes into account the particular needs of small business.” The needs of workers don’t get a look-in. The FWA legislation exempts employers from the obligation to give notice of dismissal during the qualifying period (six months for regular businesses and 12 months for small businesses). Not even Work Choices had such an exemption.

Restrictions on the content of agreements remain despite the ALP’s election promise that bargaining participants should be “free to reach agreement on whatever matters suit them”. Agreements can contain only “matters pertaining to the relationship between” employer and employees. The definition of “matters pertaining” will still be legally uncertain. Almost certainly, common law contracts will continue to cover matters that can’t be dealt with directly in a union collective agreement (UCA). This adds to the complexity of reaching an agreement.

Any industrial action around “non-permitted content”, such as the contracting out of work, will be illegal. Employers will able to introduce technology, chemicals or practices that are potentially harmful without consultation. Centralised wage fixation and pattern bargaining are ruled out, UCAs being determined at the “enterprise” level.

Union officials quiet

The response of most unions has been dismally quiet: no organised protest and very little in the way of public statements criticising the laws. The ACTU made a submission to the Senate inquiry into FWA, but even this welcomed the legislation. It did note that workers’ rights to organise and be represented by a trade union and engage in collective bargaining are meaningless if they do not have access to advice, information and representation by trade unions in their workplace.

The submission also stated that the Building and Construction Industry Improvement Act 2005, policing the building and construction industry unions, should be repealed. But this was ruled out by Gillard months ago when she affirmed that there needed to be a “strong cop on the beat” in the building industry. The ACTU submission was also critical of the FWA legislation’s lack of coverage of independent contractors and workers on foreign-flagged ships. The submission called for increased arbitration, particularly on matters that aren’t contained in UCAs.

Many individual unions made submissions to the Senate to have the Australian Building and Construction Commission scrapped, but no submissions were accompanied by any mobilisations of union members. In almost all the submissions, the unions claimed that the new laws are a significant step forward, despite their restrictions on the right to strike. Their real significance is how little they change of the existing Work Choices laws.

Dean Mighell, Victorian secretary of the Electrical Trades Union, pointed this out in a March 10 media release in which he stated that Labor had failed to live up to its pre-election promise to “rip-up” Work Choices and that the FWA bill “doesn’t deliver basic rights at work which workers in other comparable countries enjoy”. He told the March 12 Melbourne Age that the union movement had been “outmanoeuvred” by the employers. But it’s the complicity with the pro-business ALP by trade union leaders eager to retain career paths through the ALP that has led to this situation, not clever backdoor “manoeuvring” by the bosses. Mighell himself voted for the ALP’s industrial relations policy at the party’s 2007 national conference. That policy called for “a new industrial relations system based on driving productivity in our private sector”, and retained the anti-strike provisions of Work Choices.

The passage of the FWA bill is the defeat of the Your Rights at Work campaign, which the ALP ran on the back of to get into government. The FWA laws are the outcome of the ACTU channelling the YRAW campaign right from the start into a campaign to elect the ALP. Despite Work Choices being an overt attack on the working class, the ACTU never went beyond criticising it as “unfair” or “unbalanced”. It narrowly focussed on Work Choices’ design and the way it operated, rather than the very basis of the law being the capitalists’ drive to accumulate wealth at the expense of working people. What was a golden opportunity to develop an anti-capitalist outlook among and raise the confidence to struggle of millions of workers was deliberately squandered by the ACTU, despite hundreds of thousands of workers’ demonstrated willingness to mobilise against Work Choices.

The union bureaucrats’ biggest gripes with Work Choices were not the repressive nature of the laws, but that they were being locked out of the system of negotiating the sale of workers’ labour power to the employers. For the union bureaucrats, occupational coverage and legal recognition by an allegedly neutral industrial relations court are a priority way above workers’ rights to struggle against the employers. If that were not so, the Work Choices would have been challenged by widespread industrial action and more than likely made a dead-letter.

What is now at stake is the legitimacy of trade unions in the eyes of workers. The FWA laws will continue to erode and fragment the union movement. Unions are unwilling to cut their ties with the ALP, but the ALP is determined to restrict the ability of unions to effectively act to defend workers’ wages and work conditions. Until workers find their voices, speak up, organise an anti-capitalist political alternative to the ALP and challenge the class-collaborationist outlook and practices of the union bureaucracy, the situation will only worsen.