Critical comments on DPM and Minister for Workplace Relations Julia Gillard’s Forward with Fairness policy speech are widespread.
Union activists in Your Rights at Work campaign, acknowledged as pivotal in defeating Howard because of his workplace regime, are bitterly disappointed in DPM Julia Gillard’s address to the National Press Club on Labor’s proposed IR system Fair Work Australia for 2010.
IntroducingAustraliasNewWorkplaceRelationsSystem.htm
Your Rights at Work
With the dramatically changing US and world financial crisis and economic instability leading to increased unemployment and recession, the DPM could have moved decisively in ensuring more secure bargaining power for employees against more powerful business managers. This could have been done by keeping to Labor’s core promise of repealing WorkChoices.
But unions and others in industrial relations argue WorkChoices is not being abolished, giving credibility to the unacceptable WorkChoices Lite.
Howard’s regime was where corporates legally ruled unchecked and unfairly over their workforce.
Reversing such dominance means establishing modern rights for workers and their unions to defend and extend their occupational, social and economic interests in the coming uncertain decade.
Most disturbingly, there are key WorkChoices policies to be retained, such as the employers’ ability and the state to penalise workers exercising their human right to strike.
The ACTU on Thursday 18th September publicly criticised in the media that ‘Collective bargaining rights for workers at risk under Labor’s IR plan’ www.actu.asn.au.
Major union leaders made similar critical comments, accusing labor of going back on committments.
This weekend the ACTU began to screen more TV ads on collective bargaining rights. YRAW activists are encouraged to email MPs.
What workers want and deserve is the freedom to associate in unions and to decide themselves without the legal interference of company lawyers or judges or politicians in what claims are going to be made and how collective bargaining is to proceed and agreements conclude. DPM Gillard promised this, but has now retracted under more employer lobbying.
The extent of the reforms to ensure collective bargaining and the right to strike are in chapters in State of Industrial Relations 2008 http://evatt.org.au/news/482.html
I will expand on all of these IR reform issues later, but I make some initial criticisms. There are key issues about the strategic direction and the details are critical. See as well
It is frustrating in that the government does not provide detailed policy arguments, but just make declared positions, so it is difficult to respond.
1. ACTU President Sharan Burrow and unions and the Greens have widespread support most reasonably for the right to bargain collectively and strike over environmental issues.
Such bargaining is denied by DPM Gillard’s restrictive legal position on the employment relationship. See my earlier opinion piece Workers Rights that criticises this outlawing of green bans by WorkChoices.
Unbelievable really, given the environmental crisis and that workers and unions have many reasonable sustainable policies to be debated and to be negotiated and agreed with employers.
Business polluters should not be supported as is done by DPM Gillard in asserting their management preogative rule over the voices of their workforce and unions on critical environmental concerns.
2. An individual employee deserves the individual right to apply to the industrial umpire to hear your grievance over unfair dismissal and seek reinstatement.
A majority of public opinion support a policy where the individual employee in small business of 15 or less does not have less rights, as the Minister proposes.
There are many employees in small business who may be harshly or unreasonably dismissed with no remedy to go to the umpire.
The so-called imposition on small business to justify the serious act of dismissal as not unfair should not prevail over the dignity of the badly treated individual who deserves to argue their case before the umpire. The right for all to be reinstated if found to be unfairly dismissed must be stressed.
The Minister’s 7-day limit for an employee making an unfair dismissal application is impractical and takes away existing rights for 21 days. Politicians should not come up with artificial and harsh rules such as only one warning, as the parties and the umpire should determine these issues on their merits.
State IR systems that have improved unfair dismissal processes for employees should be retained. It is to be hoped that lawyers and legal technicalities are severely restricted and a practical system of union and employer advocates can be reinstituted to focus on the merits of ‘fairness.’
3. Labor’s very limited access for employees to arbitration (without merit) will cement the historical destruction of the 100 year old umpire’s role.
Those employees who can not get anywhere with employers in collective bargaining have nowhere to have their just claims arbitrated in an equity jurisdiction.
Where is the fair-go for millions of disadvantaged workers, those in the precarious workforce and those with harsh HR managers, not being able to lift their wages and conditions to comparable standards?
Any view that an arbitration system is not good for the economy is a myth.
4. In the drafting of a bargaining system to lawfully allow employees the right to vote and for a majority to have collective bargaining, the legally restrictive and pro-employer US system should be clearly rejected, otherwise workers will be in practice denied effective collective bargaining. Similarly the US process for arguing ‘fair play bargaining’ or’ bargaining in good faith’ often sees only many endless hours of unsatisfactory arguments and decisions about the negotiating conduct as seen by the other party and the system is not at all fair for collective bargaining. See my US report 2007.
5. Powerful corporations such as Telstra and Cocklear are still able to get away with refusing to bargain with their workforce. They can continue to roll out their former AWAs in non-union ‘agreements’. You can’t find requirements on such powerful companies to be compelled even into mediation or conciliation! Many polluting global corporations assert their freedom to threaten the government with a flight of capital if they do not get their way over global warming, but refuse to have a collective union agreement!
6. Due to the restrictive legal conditions on what workers and unions cannot bargain for under WorkChoices and retained by the DPM under the old employer view of management perogative, unions will not have the clear right to bargain over even positive ALP policies, such as innovation. So the doubts over the new bargaining system to assist productivity is curtailed by allowing employers to legally be able to refuse to entertain claims over innovation. Corporations are able to invoke their definition of their management perogative to avoid discussing union claims; a right unheard of in most European countries.
7. Denying the right of workers to decide the content of an agreement through the ancient common law legal device of ‘matters pertaining’ is what Professor Andrew Stewart, Adelaide University said ‘retained 100 years of complex, confusing legal opinions on what it means and is ‘ extremely unfortunate and will perpetuate a degree of uncertainty and difficulty surrounding agreement making that simply doesn’t need to be there…. the government is not trusting employers not to agree to certain claims…. either we have a system where parties are free to agree on anything they want or we don’t, and it appears we don’t.’ (Workplace Express 18/9/2008).
See also in my chapter in Evatt ‘Right to strike’ that argues for the deletion of ‘matters pertaining’. This is a return to the unfairness and outmoded notions, said ACTU’s Burrow of Electrolux.
In any event, it is objectionable for Governments and MPs to make laws saying that unions cannot claim bargaining agents’ fees for non-unionists gaining the benefits of union negotiation; or the prohibition of contractors or the other matters listed by the DPM as ‘banned’.
It is up to the employer to decide a response to whatever claims are put forward by employees for agreement, not for MPs to bann them from reaching agreement over matters that historically may have been seen by conservative employers and judges as so-called ‘management prerogative’, a throw back to an old debate.
This is not facing future workplace challenges.
8. The section on union and multi-employer agreements for the low paid (although it is an advance) is still unfair and with limitations such as unnecessarily outlawing both legitimate industrial action and arbitration. This remains in breach of ILO principles of the right to strike for multi-employer agreements. (See my articles in Workers Rights and ‘The right to strike’ in industry and pattern bargaining.)
The low paid and casualised precarious workforce face organisational constraints for industrial action, but at least some strength in their bargaining could be available with the employer knowing that the union can as a last resort take lawful protected action, although in practice not to be often used.
Why should workers and their unions be banned from exercising economic power through industrial action with a group of employers, whether national or industry or pattern bargaining?
Why should striking employees be dismissed or unions fined if the industry campaign with stop work meetings, bans, go-slows and possibly rolling stoppages is reasonable in collective bargaining? Australia is the only country that makes industry bargaining strikes unlawful.
On another point, why it is just the low paid to be allowed multi-employer agreements is not explained as other key sectors such as building and construction and manufacturing and indeed any industries ought to have the ability to bargain, if that is what is wanted, on an industry basis. There would not be a diminution of productivity advances.
9. The DPM did not have much new or surprising in the Rudd government’s unjustifiable restrictions on the right to strike that I earlier criticised, see Right to strike. I will write more later on the specifics.
The right to strike is like WorkChoices suppressed in unprotected action – outside the term of the agreement, in multi-employer and pattern bargaining.
These unecessary absolutisms of WorkChoices that legally permits penal processes for the employer to get an order for the strike to cease and to apply fines or damages against the union is retained.
In my chapter in State of Industrial Relations I criticise the model of the dichotomy of the protected strike action and that not protected.
Restrictions on strike-pay are not quite what was wanted. Allowing the employer lockout in response to a strike still exists. There are strong arguments saying this denial of the right to strike is not a fair go.
Predictably, the right-wing anti-union Australian Mines and Minerals and other employer associations attack the DPM, warning of an outbreak of strikes and repeating slanders against unionists doing their job through more protected action defaming again Victorian ETU Dean Mighell.
When Howard and employers ran hysterical ‘anti-union and fear of strikes returning’ election ads on TV, they were ignored and had little impact.
10. Many workers are most opposed to MPs arbitrarily taking away existing hard won award rights, built up over fair arbitral processes and accepted by employers.
Here I refer to the unfair, arbitrary removal of existing legal award employment rights for all those employees over $100,000. Despite reasonable arguments presented by a range of professional and high skilled workers to the DPM, she continues to assert this injustice without good reason, other than it was tactical political move to respond to powerfuil right wing mining companies during the election and to exmpt their workers from all award safety-net protection.
The dismantling of awards is not even argued one by one in the AIRC, but is to be by legislative decree. There is the point that these are high paid workers and can survive, but that is up to the workers to have their say and they do not like it and will be disadvantaged.
11. The National IR take-over via the “corporations†power of the State’s IR systems are stated as inevitable, but not fully justified by the Rudd government.
Under WorkChoices the compulsory take-over of all corporations from the State’s IR systems into the National system was not waaranted and went to far denying the preferences of some employers and employees.
Employers and employers in the private sector ought to be afforded what was denied to them under Howard, that is, a choice and a mechanism to exercise whether to be in the National IR system or remain in the State system. The State’s systems have been unfairly attacked and in reality often already have implemented more fair play than is possible so far under Fair Work Australia. At the local level employers and employees have less say over the dominance of Melbourne and Sydney in the ‘national’ system. Some employment conditions in state systems are not included in the National Minimums The National Safety net is far from guaranteeing the real benefits needed.
12. The DPM could have repealed the unjustified restrictions on employees having their union organiser’s right of entry frustrated.
13. The DPM offered no new legal ways where workers can have more say over decision-making in their enterprise. Apparently into the future there are not to be basic workplace democracy rights, again Australia far behind the practice of other IR systems. See my earlier Works Council’s paper published here.
No doubt there are some parts of WorkChoices to be repealed by Rudd Labor for the better.
Liberal Opposition Turnbull and WA Michael Keenan as the Shadow Employment and Workplace Relations Minister with the corporates lobbying to keep restrictions on unions have the contradiction of knowing politically 70% of voters want the end of WorkChoices. Sharan Burrow said ‘WorkChoices was the iceberg that sunk the Liberal and National Parties at the last election. Under its new leadership the Coalition should respect the vote of the Australian people and dump WorkChoices.’
Yes, but let’s get PM Rudd to first dump WorkChoices. Labor has to be careful in their attack on Turnbull when WorkChoices Lite is planned!
24/9/2008
A very quick comment at this stage. In important ways the problems faced now in dealing with Gillard’s attempt to pre-empt effective union intervention into the law making process by unions and community support networks, especially YR@W, started in the Forward with Fairness Implementation statement made in the lead up to the election campaign. This statement was a compromise in part on the original Forward with Fairness Policy adopted earlier 2007. The compromise was made because 1)of very effective and power based lobbying by the mining companies and the AIG during that period that rattled the ALP strategists, Rudd and Gillard in particular, and 2) the dominant mentality – including in the left – that said that the lead up to an election was not the time to fight Howard separately. This latter judgement may have been finessed in better ways at the time but it was not, and lead to the Implementation document that was in effect an agreed position that defined the terrain for the election struggle around labour law. Right now, the critical terrain is how we fight over Gillard’s retreats from the Implementation document. There are very important issues at stake in that retreat. The next critical question is this: is lobbying over the “retreat issues” (especially the ambit of bargaining rights) and tv / radio ads as is currently being pursued by the ACTU and union leaderships adequate? Is it not “lobbying without power”? What sort of power can be mobilised that will “rattle” Rudd and Gillard in the way the employer organisations were able to do, just over a year ago?
I agree. These are important questions to debate.
Look the only answer is to find good labour minded candidates to run against the krud of the labour party. Lets kick pout these dregs of corporate sleaze like gilliard and the rest.
Paul – what is the alternative to Labor? The Greens are no workers’ party.