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Monday, April 16, 2007

Scrap Howard and Work Choices! by Graham Matthews


A year after the Howard government introduced Work Choices, the legislation’s negative impact on workers’ wages and conditions and unions’ ability to defend their members’ interests is clear for all to see.

Work Choices’ attacks on workers’ rights, in addition to the Building and Construction Industry Improvement (BCII) Act and the Individual Contractors Act, have substantially shifted power in the workplace to the bosses. The only way this can be reversed is if all anti-union laws introduced by the Howard government since 1996 are repealed.

Working people and their unions must accept no lesser promise from the Australian Labor Party, should it be elected to government at the federal election. Yet, if the corporate media reports of Labor’s draft policy platform to go before its national conference on April 27-29 are true, Labor is unlikely to do enough.

While all promises to reverse the Coalition government’s IR legislation should be welcomed, we cannot be satisfied with half measures. Unions and their supporters must not slacken the campaign against Howard’s IR laws until all laws restricting the right of workers to act collectively are repealed.

Since it was proclaimed on March 27, 2006, Work Choices has had a terrible impact on the wages and conditions of low-paid and non-unionised workers. Work Choices amended the Workplace Relations Act, passed by the Howard government with the support of the Australian Democrats in 1996.

Specifically, Work Choices made the following changes:

•Reduced restrictions on bosses offering AWAs (individual contracts)

When AWAs were introduced in 1996, they could only be offered if they satisfied a “no general disadvantage” test. Under Work Choices, AWAs must only satisfy five minimum provisions (a minimum wage of $13.47 per hour, a 38 hour week, four weeks’ annual leave of which two can be “cashed-out”, 10 days’ sick carer’s leave per year and 52 weeks’ unpaid parental leave). All other entitlements are up for “negotiation” with the boss.

All AWAs registered since Work Choices have cut at least one previously protected award condition: 51% cut overtime loadings; 63% cut penalty rates; and 64% cut annual leave loadings. Across all industries, non-managerial workers on AWAs also earn less than workers on collective agreements. While this is only 1% on average for full-time workers, this figure is distorted by the large number of mine workers, on high incomes, who are on AWAs.

Bosses can offer employees an AWA at any time, allowing them to undercut collective agreements. Workers cannot officially be sacked if they don’t sign an AWA, but it can be used as a condition for being offered a job in the first place, or for promotion or redeployment.

•Unfair dismissal protection abolished

Work Choices abolished unfair dismissal provisions for workers in companies employing fewer than 100 people. Ninety-nine per cent of workers in private firms are therefore denied access to unfair dismissal provisions should they be unfairly sacked. For workers in larger firms, should they be sacked (at least in part) for “operational reasons”, they also cannot claim unfair dismissal, meaning that the protection is all but gone for all workers.

•Green fields agreements cut conditions

Under Work Choices employers establishing a new company can “negotiate” and register a collective agreement before employing any staff. New workers are confronted with the “collective agreement” on a take-it-or-leave-it basis. They are also forbidden from taking industrial action for a better deal for 12 months.

•Fewer rights for workers in sold businesses

When a company is sold, its workers are guaranteed the terms of their collective agreement only for one year after the sale. After that year, unless a settlement is reached, conditions of employment revert to the five minimum standards. Of course within that year, the new boss can also legally offer workers an AWA.

Work Choices and unions

Work Choices has also significantly weakened the legal rights of unions to fight for their members. It has severely restricted the legal rights of unionists to call industrial action and the right of entry for organisers. It has also imposed secret ballots on unions that want to call strike action. A breach of the law can land unions and individual workers with massive fines.

Work Choices attempts to make unions virtually irrelevant by taking away their legal right to fight for their members. It forces unions to hold secret ballots before any strike action is taken. The ballots must be run by the Australian Electoral Commission, with the union paying 20% of the cost. Employers can stage a lockout at any time, after giving three days’ notice.

Work Choices allows the Australian Industrial Relations Commission (AIRC) to terminate or suspend any bargaining period (the time when a new collective agreement is being negotiated) if it thinks that either party is not negotiating in “good faith”. This would make any industrial action illegal. It prohibits “pattern bargaining”, where a union attempts to campaign for a universal standard of pay and conditions across an industry. It restricts the right of entry for organisers to a work site, forcing them to give a boss 24 hours’ notice (ample time to clean up or hide dangerous practices). The boss is also given the right to determine where the organiser can meet with her/his members, such as in the room next to the boss’s office.

Work Choices outlaws the inclusion of “prohibited content” in collective agreements, including any clause that might seek to prevent workers from being offered AWAs, or that attempts to set procedures to resolve unfair dismissal claims.

If unions breach any of these rules, they can be fined up to $33,000. Individual workers can be fined $6600 or more.

Nevertheless, some unions have risked fines to defend members’ rights, such as when the Maritime Union of Australia staged a national 24-hour strike on March 23 to protest deaths on the waterfront. To date, few bosses have been willing to push to make the fines stick.

Building industry act

The most draconian of Howard’s new IR laws is the BCII Act, which virtually strips building and construction workers and those involved in industries that supply the building industry of their rights at work.

The BCII Act created the Australian Building Construction Commission (ABCC), a virtual secret police force that has the power to interrogate any worker in secret session about any matter. Workers are denied their right to silence and are prohibited from talking to anyone else about the questions asked. Failing to attend makes the worker liable for a six-month jail term for contempt.

This law also allows the ABCC to fine any worker up to $22,000, or a union $100,000, if they engage in unauthorised
industrial action. Industrial action is now only authorised where it is agreed to in writing by the employer, where there is an immediate health and safety concern, or during a recognised bargaining period.

One hundred and seven workers on the Perth-Mandurah railway line, who took strike action in January 2006, are facing fines of $22,000 each, levied by the ABCC. An additional 82 face a further $6600 in fines under Work Choices.

Should Howard win the next federal election, it is an open secret that his government would attempt to force laws similar to the BCII Act on all workers. This would make virtually all action at work unlawful.

Other laws, while not specifically targeting industrial relations, also trample on workers’ rights. The main purpose of Howard’s Welfare to Work law is to force single parents and disabled people off the pension. But it also stops sacked workers receiving benefits if their boss indicates they brought on their own dismissal. The boss’s claim is all that’s required to deny unemployed workers benefits for eight weeks.

It is also the case that should police deem industrial action to be “intended to cause serious physical harm to a person or cause a person’s death or endanger the life of a person, other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public”, they could declare that action to be “terrorist” under legislation passed after 9/11. The decision rests with the police. So, in theory, any picket that attempted to stop scabs from entering a workplace could be declared “terrorist” and the workers charged with “terrorist” offences.

The Independent Contractors Act, opposed by the union movement but passed in May 2006, denies workers deemed independent contractors the support of a union. It is a tool for the bosses to break solidarity in the workplace, to more easily outsource maintenance and, ultimately, to force responsibility for health and safety, long-service leave and superannuation back onto the individual worker.

Sections 45 D and E of the Trade Practices Act also give bosses and the Australian Competition and Consumer Commission the power to sue unions for damages if they carry out solidarity actions with other unions or members of the same union on other sites. So-called secondary boycotts are illegal and unions can be fined and held liable for damages.

Labor’s alternative

The Labor Party has promised to “rip-up” Work Choices, saying that Work Choices is unamenable. Julia Guillard, Labor’s IR spokesperson told the ABC’s Insiders program on February 11 that the ALP would repeal Work Choices and write new legislation that “restores the balance”.

So far, Labor has promised to:

•Abolish AWAs

Workers on existing AWAs would have the right to keep their AWA until its term expires, or seek to join a collective agreement with their employer. No new AWAs could be signed, although Labor has agreed to the continued use of common law agreements that bypass the IR system. Similar agreements were used by Rio Tinto in the Weepa dispute in 1993 to win miners away from a collective agreement. Although offered a higher wage, the miners have not had a pay increase since.

•Unfair dismissals

Labor has only agreed to “restore fairness” to the system. Labor’s small business spokesperson, Craig Emerson, has said that small businesses deserve “special consideration”, and that “[Labor] won’t be going back to the old, highly prescriptive unfair dismissal regime”. Emerson has also floated a doubling of the probation time for new workers in small businesses to 12 months, and to replace hearings at the AIRC with mobile dispute resolution teams that would “mediate” between bosses and workers.

Labor’s draft IR policy document to go before its national conference is vague. Rather than a list of specific policies, it is a list of guidelines, thereby allowing Labor politicians to fill in the detail later.

Under former leader Kim Beazley, for instance, Labor had promised (in July 2006 and after) to repeal the BCII Act and close down the ABCC. Since Kevin Rudd became leader, Labor has gone quiet on this. Labor has also pledged to retain the Independent Contractors Act. The one concession Labor is offering is to limit the ICA to those who earn less than 80% of their income from any one employer.

In other cases, such as the “anti-terrorism” legislation, Labor is not proposing any changes, having supported the legislation when it was introduced. On Welfare to Work, while Labor opposed the legislation when it went to parliament, a 2006 discussion paper “Reward for effort: meeting the participation challenge” released by Senator Penny Wong, shadow minister for employment and workforce participation, indicates that Labor will keep most of the provisions of the law and only reduce the harsh eight-week penalties for breaches. Labor will also seek to extend mutual obligation requirements to those disabled pensioners who were receiving the pension before July 1, 2006 and who, under Howard’s laws, are currently exempt.

There is no question that the election of a federal Labor government would be a relief for working people. However, Labor has yet to commit to restoring all workers’ rights lost under Work Choices, much less rights lost since the Coalition came to power in 1996.

While Labor has committed to making important reforms — the scrapping of AWAs and the amelioration of some of the worst aspects of Work Choices, it needs to go further. To truly restore “fairness and balance” to the IR system, Labor must undertake to undo the damage done by the Coalition over the last 11 years.

The stronger the union campaign against these draconian laws, the more likely it will be that Labor will be pushed to commit to more reforms than it has to date. The best way to maintain this pressure is if the movement maintains its political independence from the ALP. That does not mean not working with Labor. It should, just as it should work with the Greens and the small left parties that oppose Work Choices. But it does mean the union movement must not tie its campaign to the fortunes of the ALP.

The powerful massive union mobilisations against Work Choices in June and November of 2005 pushed Labor to promise to “tear up” the laws. If the union movement is to be in a position to hold a future Labor government to account on its promises, maintaining such mobilisations, along with workplace solidarity and community campaigns, will be critical. We should be in no doubt that whichever party wins the next federal election, the campaign for a just IR system and for working people’s rights will have to continue.

From: Comment & Analysis, Green Left Weekly issue #706 18 April 2007.

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