I argue that the Fair Work Bill downgrades legally the status of unions.Professor Harry Glasbeek argued (2008):
‘During the long reign of compulsory conciliation and arbitration, trade unions had become legitimate political participants. They had won the right to represent workers in an industry or occupation before a formally and functionally independent tribunal (the AIRC and its predecessors). The AIRC took the public welfare into account when settling disputes between employers and their workers. It had a political role as its tasks had a legislative character: it set market rates for categories of occupations and industries below which no worker, whether unionised or not, could be employed.
The unions played a pivotal role in these polycentric award-making exercises. The regime of dispute settlement depended completely on them. They were allowed to represent the claims of all workers who potentially fell inside the sphere of occupational categories set out in the Registrar’s documentation. Hence, once a dispute could be said to be interstate and to affect industrial matters, criteria that became easier and easier to satisfy, in respect of the determination of work conditions the identity or nature of the employer named as a respondent by to the union’s demands did not matter. It was the union identity and occupational coverage that counted.
Over time, the AIRC also came to lay down floors in respect of national rules that established standards (often subsequently legislatively enshrined) in respect of such fundamental conditions as a minimum family wage, gender parity, redundancy, termination and severance pay, work and family life balance, and the like. To do so, the AIRC heard evidence and submissions from governments, employers, the public at large and, of course, from unions. It was a scheme that blunted the impacts of unfettered labour markets and treated trade unions as senior political partners in the design and operation of a would-be social democratic political economy.
The unions were seen as pivotal political agents in the system. And their role as political participants arose out of, and was coupled to, their direct representation of workers as a class in their everyday struggles (symbolized by the unions’ uncontested right of entry into workplaces) with their employers. Workers had a democratic say over trade unions, while unions had a legitimated role at the policy tables in respect of macro-economic and social issues. The political and economic roles of unions were dynamically integrated.
The trade unions’ position as a linchpin in this elaborate mechanism of adjustment of capital/labour relations was reflected in the grant of legal personality to them, giving them the same legal standing as market capitalism’s flag ship, the for-profit corporation.’
I argue that unions in the FWB do not have the same legal status as earlier, and will be down-graded to only ‘bargaining representatives’, and to make them in effect a subsidiary under corporations.
I advocate a stronger legal scheme in labour law by mandating the role of union organisations, such to intervene where they have to play the role in bargaining and solving workplace conflict, and have to be able to enter workplaces to ensure compliance and be the effective voice of the workforce at work but also in the community on social and public issues.
This meets the oft researched and known experience that too many employees do not see union organisers at all because of employers’ restrictions and failure to grant recognition.
If in a union, employees see them as not being able to be successful, again because of legal restrictions.
But of course unions in reality are much more than mere bargaining representatives.
Look at the ACTU and any union website to see the realities.
Consequently, unions have to be able legally to be the social and political voice for workers on any issues whether in the business, in the industry or in the community. Australian unions are a good example of ‘social unionism.’ and the FWB ought not to restrict lawful organising and action in enterprises only on narrowly cast employment issues.
You know the successful political and social campaign of the ACTU’s Your Rights at Work. In order to implement freedom of association principles workers ought not be restricted over what and how they organise.
Ewing 2008: ‘Compare the position of Barack Obama who on 2 April 2008 spoke to the AFL-CIO of ‘building an America where labor is on the rise’. In the same speech, he said ‘We’re ready to play offense for organized labor. It’s time we had a President who didn’t choke saying the word ‘union.’
A President who knows it’s the Department of Labor and not the Department of Management.
And a President who strengthens our unions by letting them do what they do best – organize our workers. If a majority of workers want a union, they should get a union. It’s that simple. Let’s stand up to the business lobby that’s been getting their friends in Washington to block card check. I’ve fought to pass the Employee Free Choice Act in the Senate. And I will make it the law of the land when I’m President of the United States of America.’
A loop-hole in the bargaining representative
The FWB says employees are entitled to have their union represent them in bargaining and employers have to give written notice to all employees of their right to be represented in bargaining. The presence of one union member in a workplace entitles the union to be represented at the bargaining table. This is an advance.
I am most concerned on the legal loophole in the FWB’s definition of bargaining representatives. Notwithstanding copies of instruments of appointment, the FWB needs to correct a flaw to make it clear that employers or others cannot establish a front organisation that is not a union.
That is, the organisation as a bargaining representative must be a genuine employee organisation and not a deceit. I know of one example in some public hospitals where the powerful Australian Medical Association AMA, that is a company and professional organisation and is not legally a union, nevertheless in practice holds itself out to salaried doctors as being a union and in practice undermines the legal union for salaried doctors, the Australian Salaried Medical Officers’ Association. It is a question of ensuring legally that organisations that are not unions cannot be a union under the FWB. It is an important issue of principle for employees.
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