Labor's Fair Work: Is the tide really turning on workers' rights?

By Nick Everett

On November 25 — a day after the first anniversary of the election of the Rudd Labor government — deputy PM and workplace relations minister Julia Gillard introduced the government’s Fair Work bill into federal parliament. She said the bill would “sweep away” the Howard government’s Work Choices laws and deliver on Labor’s election promises.

“The bill being introduced today is based on the enduring principle of fairness while meeting the needs of the modern age”, Gillard told parliament. “The bill delivers a fair and comprehensive safety net of minimum employment conditions that cannot be stripped away — a system that has at its heart bargaining in good faith at the enterprise level as this is essential to maximise workplace cooperation and improve productivity and create rising national prosperity.”

The ACTU was quick to endorse the government’s proposed changes. In a press release issued the same day, ACTU president Sharan Burrow claimed: “The bill is another step towards reversing the damage done by a decade of anti-worker legislation by the former Howard government. From what we already know, it will be a major step forward from Work Choices, which removed workers’ rights... Workers and activists campaigned like never before to rid us of Work Choices. We have more than 10 years of harm to undo, but we have turned the tide. Everyone who campaigned or voted against Work Choices should take some pride in what has been achieved so far.”

Burrow’s statement echoed the recent claims of ACTU secretary Jeff Lawrence, whose article, “Tide turns on workers’ rights” in the November 7 Melbourne Age claimed: “There can no longer be any doubt. The government’s new industrial relations proposals are definitely not Work Choices Lite. As more details emerge, it is becoming crystal clear they will give Australian workers a comprehensive suite of new legal rights and protections as part of a historic overhaul of our nation’s workplace laws.”

Rupert Murdoch’s Australian argued the 600-page bill “significantly tilts the balance of power back to workers and unions” and “goes much further than Labor promised at the election by allowing union entry to worksites provided people perform work on the premises and are entitled to be represented by the union concerned”.

The bill gained a lukewarm response from big business. Australian Industry Group chief executive Heather Ridout told The Australian: “I think employers cannot have everything they want out of this bill. The government has listened hard to employers, they’ve mitigated a lot of the big risks around content of agreements.” Australian Mines and Metals Association chief executive Steve Knott described the bill as “a return to the 1993 Keating era”. Knott complained to The Australian that unions could once again enter non-union sites in the Pilbara and sign up workers currently on individual contracts.

Turning the tide?

However, contrary to Burrow’s and Lawrence’s claim that the bill is a significant improvement for workers’ rights, Gillard’s bill goes much further that the Howard government was ever able to in eroding the award system, which has underpinned workers’ entitlements for decades. Under the euphemism of “award modernisation”, more than 2400 state and federal awards will be stripped back to ten “national employment standards”. This compares with the Howard government’s attempt to restrict awards to 20 “allowable matters” when it first implemented the 1996 Workplace Relations Act.

The national employment standards will provide for a maximum of 38 hours, on average, per week. In addition the standards contain similar leave entitlements provided for under Work Choices, including four weeks paid annual leave per year (with employers able to “cash out” leave in some circumstances), paid personal/carers leave and unpaid parental leave. Public holidays and existing notice of termination and redundancy provisions will be retained.

However, the national employment standards will provide no protection for penalty rates, overtime rates and allowances. Workers will have to rely on enterprise agreements, negotiated through collective bargaining, to retain these conditions. And significant obstacles will hinder workers’ ability to secure pay and conditions through collective struggle. Pattern bargaining (the right to take industrial action in pursuit of industry-wide pay and conditions) will remain outlawed.

While the proposed legislation does away with “prohibited content” in industrial agreements, it will be unlawful for workers to take industrial action in pursuit of matters that don’t pertain to the employment relationship, as defined by Fair Work Australia, the government’s new industrial “umpire”. Such matters are likely to include limits on the employment of casuals or the use of contractors.

In addition, as is the case with Work Choices, industrial action will only be deemed lawful with the approval of a secret ballot of a majority of employees. Such a ballot requires 72-hours notice and will have to be conducted by the Australian Electoral Commission. It will remain unlawful for employers to pay workers taking industrial action. And, provided that the workers have taken industrial action first, it will be lawful for employers to lockout workers.

Fair Work Australia, which will replace the Australian Industrial Relations Commission and five other federal government agencies in January 2010, will have the powers to suspend or terminate industrial action and arbitrate if a dispute is deemed to be protracted or causing harm to either party. And while union officials will regain entry to workplaces, irrespective of whether they are invited by a union member, the requirement to give a boss 24-hours notice will be retained.

Unfair dismissal protection only for some

Gillard’s Fair Work bill does not restore unfair dismissal rights for all workers. Under Work Choices workers could only pursue unfair dismissal claims against employers that employed 100 or more employees. Under Labor’s new “fair dismissal” laws — which will take effect in July next year — a worker can pursue a claim against any employer, but will have to be employed for at least six months to be eligible. And if the worker is employed by a small business with less than 15 employees, they will have to be employed for 12 months before they can pursue a claim.

Following in the footsteps of the Howard government, Gillard’s proposed legislation curbs the rights of workers employed by small businesses. Small-business employees will be entitled to one warning and a “reasonable opportunity” to improve their conduct before being at risk of dismissal. “It’s as simple as that”, Gillard told the National Press Club on September 18. “Multiple warnings are not required. There is no requirement for ‘three strikes and you’re out’. As long as employers comply with this [Fair Dismissal Code for Small Business], the dismissal will [be] held to be fair.”

Compensation will be capped at six months pay for the most serious cases of unfair dismissal and legal representation at Fair Work Australia will be allowed only in “exceptional circumstances”.

AWAs retained

Labor’s Workplace Relations Amendment (Transition to Forward with Fairness) Act, which came into force on March 26 this year, prohibited the signing of new Australian Workplace Agreements (AWAs), but allowed existing AWAs to continue until either the employer or the worker terminates the agreement. In addition, the legislation introduced AWAs by another name — the Interim Transitional Employment Agreements (ITEAs) — allowing employers with just one worker on an existing AWA to sign up new workers on two-year individuals contracts.

On November 21, in a further concession to big business, Gillard announced that she had “decided that old Act agreements, such as old 1993 IR Act agreements, AWAs, ITEAs, s170LK and LJ agreements, will continue to apply until such time as a new agreement is made”.

Lawrence sought to defend Labor’s retention of AWAs by claiming, “While those [AWAs] still in operation will be allowed to run their course, they will have to comply with the national [employment] standards”. But while existing AWAs will now have to comply with the national employment standards, these standards contain provision for “flexibility clauses” which will allow bosses to “negotiate” directly with workers to vary conditions of employment. The use of “flexibility clauses” will operate similarly to pre-Work Choices AWAs, which were subject to a “no disadvantage test” (often subject to little or no monitoring by government agencies).

ABCC to continue under a new name

In October 2005, the Howard government created the Australian Building and Construction Commissioner (ABCC) under the Building and Construction Industry Improvement Act. This Act empowers the ABCC to coerce building industry workers to comply with its demands for information or face the threat of heavy fines or jail. Referring to the ABCC as a “tough cop on the beat”, Gillard committed the ALP to retaining the body until January 2010. The ABCC’s coercive powers will then be transferred to a special building industry inspectorate within Fair Work Australia, established under Labor’s new Fair Work bill.

While its brief is to oversee adherence to industrial law, the ABCC conspicuously fails to investigate or prosecute employers underpaying workers or breaching safety regulations. If a worker is killed on site, his or her co-workers must be able to prove they had a reasonable concern about an imminent risk to themselves to legally stop work and assess the safety situation.

Since the election of the Rudd government, investigations by the ABCC have increased. The ABCC’s report on its activity for the six months ending September 30 indicates that it had issued 46 notices to attend and answer questions and conducted 36 compulsory examinations. This is the greatest use of its draconian powers to compel testimony from witnesses in closed sessions in its three-year history.

The ABCC’s notices were issued disproportionately in Victoria, the state with the most militant construction unions, where 26 people were compelled to attend its secret hearings. In Queensland nine were issued, with fewer issued in other states. Of the 146 people who have been issued notices to appear by the ABCC to date, only one person — Construction, Forestry, Mining and Energy Union (CFMEU) official Noel Washington — has refused to appear.

In June, the Department of Public Prosecutions charged Washington for refusing to disclose what was discussed at a union meeting outside of work time and off site. Under section 52 of the BCII Act, any person who refuses to attend an ABCC interrogation or answer any question asked is liable to a six-month jail term.

On July 30, a Victorian Trades Hall union delegates meeting unanimously endorsed a resolution calling for the Rudd government to immediately abolish the ABCC, repeal the Building and Construction Industry Improvement Act and drop the charges against Washington.

On August 25, the ACTU launched a “Rights on Site” campaign against the ABCC. CFMEU construction division national secretary Dave Noonan told the media: “We find it amazing that the Rudd Labor government, elected to restore Australian’s rights at work, should care so little about the rights of [construction workers] Charlie, Joe and Ivan [forced to attend interrogations under threat of six months jail] and the 900,000 other construction workers in this country.”

But to date the campaign for the abolition of the ABCC (which did not feature prominently in the ACTU’s 2006-2007 Your Rights at Work Campaign) has consisted primarily of TV advertising. While these TV ads serve to educate working people about the discriminatory laws that are being used to deprive construction workers of their civil rights, they do little to place pressure on the Rudd government for the repeal of the laws.

The November 27 West Australian reported that the WA branch of the CFMEU had called off a December 2 demonstration against the ABCC after learning of the decision of the federal DPP to drop the charges against Washington. CFMEU state secretary Kevin Reynolds told the West Australian: “It’s very clear the ABCC are in tatters the way they have handled this.” But the West Australian also reported that “Mr Reynolds said he would not encourage unionists to further challenge the ABCC’s powers”.

“The demonstration is definitely still on”, Maritime Union delegate Ian Jamieson told Direct Action. “And the rally here in Perth has the solid support of the Maritime Union, the Electrical Trades Union and the Australian Manufacturing Workers Union. The MUA is organising buses to get our members there.”

The dropping of charges against Washington is a victory. But a much more concerted and militant campaign will be needed to abolish the ABCC (and its successor within Labor’s Fair Work Australia) and to remove laws that limit workers’ rights to organise and to strike. Such a campaign will require unions to lead mass actions, including strategic industrial action such as bans and boycotts, that can disrupt business as usual for the employing class.

Instead, the Laborite union officialdom is oriented to lobbying within the ALP for the repeal of the anti-union laws. Victorian Trades Hall Council secretary Brian Boyd told the November 25 Australian that Gillard’s claim that the changes in the Fair Work bill had found the middle ground between the demands of employers and unions was a mischievous furphy, as the proposals were “too far to the right”. Boyd said that the unions “will have to campaign into 2009 right up into the ALP national conference for another package of IR amendments and regulations”. This is what the unions did prior to the last ALP national conference — and ended up with legislation that Dean Mighell, Victorian secretary of the Electrical Trades Union, described to The Australian as “at best, Work Choices-lite”.

As the current capitalist crisis intensifies, and employers seek to shed jobs and make workers pay for their declining profit margins, workers will be increasingly compelled to organise and to take industrial action to defend hard fought pay and conditions. But with the Rudd government beholden to the interests of capital, such defensive action can’t, and won’t, be led by union leaderships that lend support to an anti-worker Labor government. Now is the time for unions to call the Rudd government what it is — a bosses’ government — and to break politically with the ALP.