The major employer associations are up in arms about the Albanese government’s proposed new industrial relations laws because they supposedly entrench greater union power. But despite the bosses’ outrage, Labor’s changes will do nothing to boost the wages of the overwhelming majority of workers.
In fact, the proposed laws in the Secure Jobs, Better Pay bill, tabled in parliament in late October, will make it even harder for workers to organise strike action and will further penalise workers that step out of line.
Australian workers already face some of the most draconian industrial relations laws of any advanced capitalist country. Under the Fair Work laws—disgracefully introduced by the last Labor government in 2009—wages have stagnated for a decade and are now declining at a faster rate than at any time since the Great Depression of the 1930s.
Big business is raking it in, with the profit share of national income at a record high. Yet the bosses are screaming for more, and Labor is bending over backwards to fulfil their every wish, offering to make even further concessions in their favour.
The Fair Work Act currently outlaws strikes and any other form of industrial action during the period of an Enterprise Bargaining Agreement, which can last for as long as four years. Workers face extremely heavy fines if they take action on issues of vital concern such as health and safety, wage theft, victimisation of union activists, mass sackings, racist or sexist abuse, or sharp declines in real wages. The prohibition even extends to relatively minor actions like overtime bans, not wearing uniforms or changing email signatures.
Basic solidarity action in support of other groups of workers in highly exploitative low-paid industries is likewise outlawed. It is also illegal to strike against government austerity measures or as part of negotiations around so-called greenfields agreements for new work sites.
There are extremely tight limits on the rights of union officials to enter a workplace, to hold meetings to talk to their members, to check on safety breaches or underpayment of workers, or to recruit to the union.
Even when an agreement has expired, workers can’t legally hold a democratic mass meeting and decide on what action to take. There is a very limited “protected bargaining period” during which workers must adhere to many bureaucratic rules and delays to obtain the right to vote on lawful industrial action.
These delays are all aimed at protecting the bosses’ interests by keeping business running as usual and throwing up barriers to workers securing higher wages. For large companies making profits in the hundreds of millions of dollars, the penalties under the Fair Work Act are peanuts, whereas unions, individual union organisers and workers face huge fines if any of the rules are broken, and workers can have their right to take action denied.
Even when workers manage to make their way through the maze of rules, the bosses, the government or other “interested parties” can masquerade behind “public interest” concerns to get Fair Work to outlaw any action that is effective in hitting the bosses’ profits. And workers are required to give the bosses three days’ notice of any strike action, so that the effects can be neutralised as much as possible.
Appallingly, the union leaders have not been prepared to defy these anti-democratic laws. They have utterly failed to organise a fight to defend living standards and are simply acting as a cheer squad for Labor. ACTU secretary Sally McManus spuriously claims that Labor’s new laws will provide “an improved mechanism to fix the wages crisis and ease the cost-of-living burden”.
In reality, the overall impact of Labor’s changes—despite a few minor concessions such as greater access to the small claims tribunal for workers to recover stolen wages, bans on pay secrecy provisions and limitations on fixed-term contracts—will be to make it even harder for workers to defend their rights.
Labor is touting expanded access to multi-employer bargaining in the low-paid bargaining stream (renamed the supported bargaining stream for low-paid industries, government-funded industries and female-dominated sectors) and the single-interest employer authorisation stream.
However, workers have to jump through all sorts of hoops to gain access to the supported bargaining stream. The Fair Work Commission has first to decide whether it is “appropriate” for any union to participate in the stream. Construction workers have already been banned from the stream and any union that shows any sign of standing up for workers will not be able to participate.
Under the tighter regulations introduced for these new streams, unions and individual union officials can be excluded if they have a history of militancy and of breaching the draconian provisions of the Fair Work Act. This is all aimed at creating subservient, tame-cat unions.
Supposed “bad behaviour” in an entirely unrelated industry or workplace can prevent unions being able to take advantage of these new provisions, when the reality is that it is frequently only by stepping out of line that workers can win major improvements in their living standards.
As the government’s explanatory memorandum for the new laws spells out, these legal penalties and restrictions are all intended to “ensure public order by encouraging compliance with the FW Act by providing consequences for not doing so”, noting that the provisions “may limit the right of trade unions to function freely”. Furthermore, Fair Work can use the public interest provisions in the Act to prevent any employer being pushed into the new bargaining streams on the basis that it “could adversely affect competition on the basis of quality (including service levels) and innovation”.
The rules around ballots for protected action and the ability to take any action are being further tightened to add extra delays and force unions to engage in compulsory conciliation meetings with management before they can even get to hold a ballot for action. Then, if a ballot is successful, workers in both the supported bargaining stream and the single interest employer stream will be forced to give their bosses five days’ notice of any action, giving them even more time to organise scabbing.
And even these limited changes to multi-employer bargaining are under threat as the Labor government rushes to placate the bosses’ concerns and further narrow the scope.
Labor’s other supposed concession to workers is the cooperative bargaining stream, for which any form of industrial action is totally outlawed.
To further regulate working-class militancy, a new office of General Manager of the Fair Work Commission will be created. According to the Act’s explanatory memorandum: “The broad functions of the general manager are to promote the efficient management of organisations and high standards of accountability of organisations and their office bearers to their members and to promote compliance with financial reporting and accountability of the RO (Registered Organisations) Act”.
The new Act includes a specific provision “that the general manager must seek to embed a culture of good governance and voluntary compliance with the law within organisations”. So there is going to be much greater state control over the internal workings of unions and the further undermining of the already extremely limited democratic rights of union members to take action.
The Act also includes major new enforcement and policing powers to be used against workers and their unions, including the establishment of a special police force of infringement officers that can issue infringement notices and enforceable undertakings outlawing basic industrial activities. Yet despite all the new penalties that workers will face, wage theft has still not been made a criminal offence.
The Australian Building and Construction Commission (ABCC), which was specially set up to terrorise and intimidate construction workers who stood up to their boss, is to be abolished under the changed laws. While the end of the ABCC is to be welcomed, the Fair Work Ombudsman will now take over the intimidatory role of the ABCC and crack down on any spark of industrial militancy and continue with the prosecutions previously launched by the ABCC.
In any case, there is no guarantee that the abolition of the ABCC will get through the Senate as cross bench senators Jacqui Lambie and David Pocock have been parroting the bosses’ line about the need to crack down on (non-existent) industrial militancy. In response, the government has indicated that it will create a new statutory body to effectively serve the same purpose as the ABCC.
The final kick in the guts for workers under the proposed new laws is the watering down of the Better Off Overall Test (the BOOT), which is meant to protect low-paid workers from having their wages and conditions undermined. The BOOT is now to be “applied flexibly”, with “flexibility”, as always, a euphemism for bosses having more latitude to erode workers’ conditions.
When assessing any new agreement in relation to the BOOT, the Fair Work Commission will now be legally instructed to “give primary consideration to any common view expressed” by the bosses and the recognised union officials, and to sideline the complaints of any worker who loses out under a shoddy deal. That would make it more difficult for unions such as the Retail and Fast Food Workers Union, which has used the BOOT to defend workers’ conditions, to challenge agreements that disadvantage workers but have the blessing of officials of registered unions such as the SDA (the right-wing shop assistant’s union).
Huge corporations such as McDonalds and the supermarket chains are understandably salivating at the prospect of being able to negotiate sweetheart deals with conservative, do-nothing unions that cut the conditions of workers in exchange for exclusive union coverage rights.
So despite the bosses’ whining about Labor’s new bill, it is in fact another a step backwards for workers. If passed, it will have to be defied if there is to be any hope of workers defending living standards from further erosion.
It is an absolute disgrace that the conservative, self-serving union bureaucrats that control the ACTU are championing the new bill. The union movement is going to have to be rebuilt on a militant basis from the bottom up if the bosses are going to be challenged.