Chris White Online

The Fair Work Bill is not a fair collective bargaining system when the repressive WorkChoices outlawing on the right to strike for pattern or industry bargaining remain. Outlawing pattern and industry bargaining is still unfair. It does not meet any form of ‘keynesian demand management’ necessary to stimulate the econmy, but the reverse.

The incessant media beat-ups and ‘1984 spin’ to punish unions in pattern bargaining has to be rejected.

Parliament should not continue Australia as one of the few countries to make pattern bargaining unlawful, worse than the in the US, a serious breach of workers’ rights in the FWB.

The ACTU has strong opposition to the FWB. The right of workers for industrial action includes pattern and industry bargaining that should be respected.

The ILO criticised Australia’s Workplace Relations Act (1996):

‘Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike.’ ILO (1996).

The ILO Committee of Experts was concerned at the discretion afforded to the Industrial Commission to determine the appropriate level of bargaining:

‘The Committee is of the view that conferring such broad powers on the authorities in the context of collective agreements is contrary to the principle of voluntary bargaining. …the choice of bargaining level should normally be made by the parties themselves, and the parties ‘are in the best position to decide the most appropriate bargaining level’ (General Survey on Freedom of Association and Collective Bargaining, 1994, paragraph 249). ILO (1998).

In March 1999, the Committee found, in relation to multi-employer agreements:

‘The Committee notes that by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests.’ ILO (1999).

In considering the government’s response, the CEAC stated ILO (2001): ‘With respect to the right to strike in support of a multi-employer, industry-wide agreement for all practical purposes is prohibited.’

I argue that the FWB is similarly in breach.

Some additional points. Employers engage in industry and pattern bargaining; they seek common claims with other employers in their industry or at Reserve Bank national constraints of about 4%.

Employers support the reality of the ‘level playing field’. Employers may not want to be forced into competition on the price of labour, whether through forcing it down as low as possible, or engaging in leapfrogging increases, either to attract and retain labour or in response to union claims. Why not a choice for core issues determined in agreements concluded with one or more employers, with other employers and their employees satisfied to then adopt these conditions.

Employer industry associations bring together employers to work out a common strategy to oppose union claims that are as much pattern bargaining as a common union claim.

Industry and national bargaining throughout the world is not inconsistent with enterprise bargaining. Even where common wages are accepted, they are often implemented differently as to timing, ‘offsets’ and site-specific productivity.

A combination of enterprise/industry bargaining in industrial relations practice has to be determined by the parties, without artificial legal restrictions imposed by the state. One of the right wing cries is somehow industry bargaining does not mean productivity. Again, this flies in the face of industrial relations experience not to know that industry bargaining agreements with multi-industry employers does mean productivity advances.

152 IR and Labour Law academics in their Senate critique of the WorkChoices Bill condemned the outlawing of industry strikes and continue to do so.
A reform is in the FWB for multi-employer bargaining should employers and unions genuinely wish to do so. But again most unfairly protected action and good faith bargaining orders are not available, giving the upper-hand to employers. Furthermore, it is unlawful to coerce an employer to make a multi-employer agreement or to discriminate against the employer if they have not entered into a multi-employer agreement.

The FWB provides for the establishment of a ‘low paid bargaining’ stream that entitles low paid workers involved to make application to FWA for them to convene and chair conferences, help identify productivity improvement to underpin an agreement and assist the parties through the bargaining process. But protected action is most unfairly not allowed.

However, the low paid stream workers have access to final arbitration should employers and unions fail to reach agreement. This arbitration is limited to a ‘first contract’ style arbitration, meaning it is practically only available in those areas where no enterprise bargaining has been entered into by the parties before.

I conclude with a quote from Ewing (2008): ‘…an effective collective bargaining strategy requires a strong commitment to sectoral or industry wide bargaining, as well as initiatives addressed to the enterprise.

No major economy with decentralised collective bargaining at enterprise level underpinned by recognition laws has a collective bargaining density of more than 50%. This would be true of the United States, Canada, and Japan, as well as the UK. In contrast, countries with higher levels of bargaining have higher levels of collective bargaining coverage. There is no major economy that has sectoral bargaining where there is collective bargaining coverage of less than 70%.

Collective bargaining density is tied closely to the level at which it is conducted. Enterprise bargaining and the organising model by which it is underpinned is extraordinarily resource intensive and difficult to sustain and maintain in hostile conditions.’ (See later Glasbeek).

On the outlawing of pattern bargaining, I repeat what I wrote in 2008.

‘MPs pattern bargain but not workers

In the Financial Review, DPM Gillard remains tough in Labor’s crack-down on pattern bargaining. Pattern bargaining – industry-wide industrial action in pursuit of an industry agreement or identical enterprise agreements – is like WorkChoices specifically prohibited by her Bill (sections 412 and 422).

Her Fair Work Bill retains the entire WorkChoices repressive regime against this legitimate form of collective bargaining. The ban of the right to withdraw your labour for industry or pattern bargaining is still in breach of ILO obligations.

Yet the DPM and all MPs throughout Australia set their own wages by their own exclusive way of pattern bargaining.

The political elites running the state, Ministers and MPs and senior public servants and the judiciary work out how to refine their system of making common claims and then pattern bargain. They have their own arbitration system, their own remuneration tribunal. Increases not based on productivity but on the fair principle of comparative wage justice are granted and then more or less (subject to the politics) automatically passed on to MHRs and Senators and senior bureaucrats and then the increase further ‘flows-on’ to other State’s MPs, CEOs and judges etc.

Corporate CEOs pattern bargain with comparisons in the international market.

Such a fair system is denied to wage earners.

The DPM’s election promise for working families to be free to choose how to collectively bargain is ‘loose with the truth’.

Pattern or industry or national bargaining has been ACTU policy for years. The ACTU rightly attacked it being made unlawful under WorkChoices.

The Fair Work Bill cements the serious fragmentation of workers organising in their unions across industries.

So much for WorkChoices being abolished; another case of being loose with the truth!

As well, flowing on modest wage increases on an industry basis with comparative wage justice would stimulate the economy in these recessionary times.’

I know that ALP and Green Senators previously are on record supporting pattern or industry bargaining and supported the ACTU position.

Secret ballot processes still flawed

As in WorkChoices, the FWB requires employees to approve industrial action through a secret ballot, which is now paid for by the AEC. My main issue is not the democratic vote that in case does occur, i.e. any accusation that strikes are not democratic is unfounded.

The problem is the process for an order for a secret ballot is still complex and inefficient like WorkChoices and allows an employer to take technical objections.

I covered one point on ‘the nature of the action’ to delay and frustrate the industrial action. The principle of freedom of association is that workers are legally able to administer their democratic vote without interference from the employer and/or the state.

Another way for the employer to frustrate protected action is that the FWA as in WorkChoices must be satisfied that the union is ‘genuinely trying to reach agreement’. This may sound all right, but earlier corporate lawyers in many cases had scope to challenge and delay unions protected action.

With WorkChoices any number of baseless reasons why a ballot not proceed were allowed, such as by objecting to the questions that the union puts to its members or that it is pursuing prohibited content claims. The FWB still allows this.

It specifically requires a copy of any application to be given to the employer, so it is difficult to see how FWA could be satisfied as to the genuineness of the union’s attempts to reach agreement without hearing from the employer.

Why the DPM continues to allow the employer to so challenge is inexplicable. It is not reasonable at all but particularly prior to the ballot. In any case, when protected action is underway the employer still has many ways to stop it.
The real industrial relations challenge is for the employer to negotiate the claims and grievances, not to have corporate lawyers defeat the workforce.

As in WorkChoices, a majority of union members bound by the proposed agreement will be required to vote in favour of the industrial action before it can be authorised, and a simple majority of people who vote is not enough continuing the perverse tradition of WorkChoices where employees can vote to bind themselves to the terms and conditions by a simple majority of voters but in order to authorise industrial action a higher standard is in place.

The ILO has held that while: ‘the obligation to observe a certain quorum…may be acceptable…The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.’

The Object of Protected action ballots: ‘to establish a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement’ are not achieved. Again there is no merit argument presented by the DPM to deny this freedom of association. The ILO allows process requirements such as notice so long as they do not prevent the effective determination of industrial action.

No strike pay provisions still unfair

A minor reform is that with protected action the employer deducts pay for the actual period of time the workers stopped work, so the fundamentalist four-hour deduction under WorkChoices goes. If partial work bans are implemented employers will be able to issue a notice and deduct a portion of pay, with disputes resolved by FWA.

However, for unprotected action the four-hour minimum remains, continuing the unfairness. This is a disincentive for people to return to work. There are many examples of half hour stop-work meetings where workers would return to work and then be docked a further three and a half hours. Really there ought to be paid meetings for employees to meet collectively for short periods to hear report backs etc without any threats at all. There should be scope for FWA to determine in exceptional circumstances on the merits, e.g. extreme provocation, that strike pay is warranted.

No Lock Outs and employer industrial action

The FWB expressly prohibits employers from performing offensive lockouts, which is an advance.

However, unlike the previous 1993 Workplace Relations Act, anything short of a lock-out by an employer is not unprotected industrial action. A unilateral change in the usual performance of work can be unprotected industrial action for an employee but not an employer. So an employer is free to cancel all overtime during bargaining without that conduct being regarded as unprotected industrial action. But an overtime ban by employees would be, unless it had been authorised by a protected action ballot.

The common law against strikes remains

Workers and unions engaged in legitimate industrial action held to be unprotected are at great risk against the common law weapon of tort used by employers. There is the strength of protected action against unions being sued in tort at common law, but limited only to enterprise bargaining.

While the common law doctrine against strikes was rarely used in Australia for 70 years due to our conciliation and arbitration system preventing and settling strikes, was a resurgence of this ancient employer’s weapon, with greater use in the last 20 years. This contrasts with the immunity for industrial action gained by unions in the UK from common law tort action as early as 1906.

The ILO in 1991 criticised the Hawke government and company use of the common law with damages of $6.5 million against the Pilots engaged in a controversial enterprise bargaining dispute for higher wages but outside of the Accord. Although the Committee on Freedom of Association did not uphold the Federation’s complaint, it said it could not view with equanimity a set of legal rules which:

1. appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein;
2. makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequences of their actions;
3. enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct.
The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests. 277th report of the ILO Committee of Freedom of Association, Geneva, ILO, 1991, 60.

The ILO continues to stress that an unacceptable outcome of unprotected industrial action is the use or threat of the common law against the unions’ industrial action:

‘in Australia, unlike in England, … in all but some limited circumstances an employee is not regarded as having a “right” to withdraw his or her labour.’ Furthermore, where unions counsel their members to take strike action, they may be exposed to actions for the so-called ‘industrial torts’ of inducement to breach of contract, interference with contractual performance, intimidation, and conspiracy, among other things. Employers may also seek common law injunctions to prevent threatened strike action. Case No 1511, CFA Cases, 1991, [263].

But in this era, employers take tort actions against unions. Consequently, the policy of immunity from tort law as we saw in the WR Act (1996) section 166A had some significance, although limited, but removed by WC Act (2006).

The common law makes much union picketing unlawful. Protection is not afforded to effective picketing. Disorderly conduct, trespass, and the ancient common law of ‘watching and besetting’ are common law tort weapons against the picketers. Picketing may be held to be a civil wrong and tortious. Such restrictions are contrary to ILO standards.

10. Repeal the 30-day rule.

The requirement to commence protected action within 30 days or go back to FWA is an unnecessary restriction and does not allow the freedom necessary for any dynamic industrial relations negotiations and indeed it again is hard to follow any merit in this.

No individual right to strike

My 2008 Senate submission on the Transitionary Provisions pointed out the limitations on individual contract bargaining. Before WorkChoices there was an AWA right to strike.

By maintaining the WorkChoices’ no right to withdraw labour in individual contract agreement negotiating, the FWB affords no protection for thousands of employees negotiating personal ‘common law’ agreements.

The FWB is not respecting the need of the individual negotiating to have a clear enforceable right, if necessary as a threat to do the work in a different manner nor any other form of individual response to the employer’s negotiating position.

Right not to be penalised for short-term political protests

I am opposed to unfair penalties still available under WorkChoices to employers to legally use against reasonable but now designated ‘unprotected industrial action’, such as the dismissal or victimisation of workers who join short-term political protests about their interests, such as the ACTU community campaign rallies against WorkChoices, that originally were lawful, but made unlawful by WorkChoices and retained by the FWB. In a democracy, some freedom to protest must allow a limited form of lawful political strike action.

See my paper about lawful political protest action in ‘The Right to Politically Strike?’ AIRAANZ 2005 Conference Sydney University http://airaanz.econ.usyd.edu.au/papers.html and the Evatt Foundation 13/4/2005: ‘The right to politically strike? The case for re-evaluation’. http://evatt.labor.net.au/publications/papers/139.html

As a human right, the right to strike responds to attacks on workers’ industrial rights and promotes other human rights.

‘If the right to strike is a human right workers must be free to determine the causes they will promote by using it, just in the same way that we do not censor the purposes that may be promoted by the exercise of the right to freedom of assembly. People are free to exercise their human right to peacefully assembly by marching through the streets to demonstrate their opposition to the invasion of another country or anti trade union legislation. Why should they not also be free to exercise their human right to strike to promote the same ends by staying at home, or in order to reinforce the protest? It is not for the State to determine the causes which may be promoted in this way.’ (Ewing 2004)

The democratic right to strike

The right to strike is also justified on principles of democratic rights, civil liberties, and freedom of speech and conscience.

Today, employees surely warrant their individual dignity and deserve to be treated fairly. No one should be at risk of being abused for participating in legitimate industrial action.

The collective bargaining system that we take into the 21st century should be based on secure rights for workers, including firewalling the right to strike.

The disappointment is that the Labor government retains the current imbalance.

Such ‘repressive tolerance’ will disadvantage working families facing the substantially increased power of corporations in the GFC. To really go Forward with Fairness, Australia needs a regime where the right to strike is as a last resort available to defend and advance their occupational, social and economic interests, and is recognised as a democratic right for workers and their unions.

Today, employees do not want to be used as virtually corporate wage-servants, to do whatever unreasonable demands corporate managers want, but have the realities of some freedoms.

The era of no right to strike should be over, but with only minimalist changes to industrial action, the FWB promises are illusory.

‘The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes – one of them is the loss of freedom.’ US President Eisenhower.

‘Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.’

Clyde Cameron, former Labour Minister (1970) ‘Industrial protest: the Right to Strike’ University of Adelaide, WEA 27/11/1970. (Australian Parliamentary Library).

It is ‘1984 doublespeak ’to say under the FWB ‘the right to strike remains’.

Fair Work Bill