Chris White Online

The Fair Work bill (FWB) is set to go through Parliament this week.

The Fair Work Bill being decided in the Senate will be weakened by Labor’s deal with the opposition and independent senators. This further delivers the corporate agenda to undermine gains for workers’ rights.

I posted on this blog substantial union and academic criticisms of the FWB.

Working families’ interests are not going to be properly protected during this unprecedented capitalist crisis – the massive collapse of finance and productive profit and accumulation into this great global recession.

I checked with “Tracey”. You remember her in the ACTU TV election advertisement where she is at home with her two children and her boss calls her to come into work but she has no one to mind her kids and is threatened with the sack. “You can’t sack me”, she says but under Work Choices she was. And still can be under the FWB.

How does Tracey negotiate her rights at work under Labor’s FWB and the new Fair Work Australia?

Deputy PM Julia Gillard promised Tracey the legal right to a family friendly workplace. She is dismayed that the National Employment Standard allows her to have a conversation about working hours to suit her family. But her request is not a legal right – it cannot be enforced if the employer says no!

Like millions of Australians, she works for a small business with less than 15 employees. Under the FWB, Tracey can still be sacked harshly and unfairly like under Work Choices, and has no right to apply for reinstatement until after 12 months.

Tracey believes unfair dismissal is an individual human right for all and millions of employees in small business ought not be denied it and subject to dismissal at will during this great world recession.

If Tracey works in a large business, she has only seven days to lodge her unfair dismissal application, a technicality to defeat the remedy.

Living in South Australia, Tracey had the right to go to the SA Industrial Commission for her workplace rights and 21 days to lodge an application for hearing.

But Work Choices compulsorily forced all State businesses into (an inferior) national system.

The national takeover of States’ rights is kept under the FWB. Tracey knows that regional workers are not heard in a national system.

Tracey argues with her boss. He then explains she is made redundant instantly with no notice. She gets no redundancy pay despite her loyal work for 10 years!

She finds that the FWB and the so-called “modern award” system exempt small business employers from providing extended notice and the minimum redundancy pay.

Tracey hears the DPM deliberately backed small business exemptions to provide redundancy pay.

The DPM does not even have an employer requirement to notify employment centres of redundancies or to notify the union for assistance when less than 15 are made redundant.

Yet the DPM still allows business CEOs to receive millions in “golden handshakes” and does nothing about excessive corporate pay.

The DPM uses the Constitution’s Corporations power for the FWB, but not on CEOs.

Tracey finds out that Australian Workplace Agreements continue for five years. Powerful employers still press non-union and individual agreements.

As a casual, Tracey sees she still has little ability to enforce her limited rights.

Given the recession she is even more insecure. Tracey, along with millions of other casual and part-time workers, is even more exploited.

Tracey wants advice from a union representative about her rights. But her employer used the legal Work Choices devices to frustrate her right to have union advice. These right of entry restrictions remain under the FWB.

Tracey believes that the FWB should mandate union organisers to come into any workplace to assist any employee. It should not be up to the goodwill of the employer.

Union organisers enforcing employer compliance for workers’ rights is in the public interest.

Tracey joins her union, organises with her fellow workers and prepares for collective bargaining. She is dismayed to find that, just like Work Choices, the FWB enforces legal limitations on what claims workers can bargain for.

A key Rudd promise on which he has inarguably reneged is his commitment to let employers and workers reach agreement on any matters they choose.

Under the FWB the content of enterprise agreements will continue to be restricted by the archaic requirement to deal with matters directly “pertaining” to employment relations.

This legalism narrowly interpreted by judges will cast doubt on e.g. the ability to enforce commitments to tackle climate change.

Tracey, with her young children in mind, was keen for environmental reforms for their future, for green jobs and for action on global warming. She is upset she could not raise these issues freely in a collective bargaining agreement under the Fair Work Australia regime.

Further, that legitimate community-backed ‘green bans’ are still ‘unlawful’.

Like Work Choices, there are many legalisms for corporate lawyers to defeat workers and their collective bargaining rights.

She was troubled that attending a short political protest, such as an ACTU rally or union community action can still be penalised. The FWB does not have protection for democratic participation in legitimate protests.

Tracey is angry Australian workers’ rights are below the international minimum labour standards set by the International Labor Organisation (ILO) that Australia is obliged to uphold.

Tracey and her co-workers are so upset with the authoritarian, disrespectful, bullying of management that they gather up enough courage to believe that they could stick together and to put on industrial bans in protest.

They say to their employer if they do not receive fair play, then as a last resort, they have no other means but to take industrial action. They were upset to find out that the many legal restrictions on lawfully withdrawing their labour are the same as Work Choices and in breach of the ILO.

Howard’s anti-union penal powers remain.

And at a time of record-low strikes! Why?

The FWB retains the repression of strikes. Workers risk having their industrial action stopped by commission or court order. Or they face being dismissed, and their union fined, for a so-called “unlawful” strike. This is most upsetting that they have little legal power to put pressure in bargaining on their employer.

Under the former arbitration system, after a strike, the dispute was settled. But under the FWB in most circumstances Tracey cannot go to arbitration.

When faced with worse treatment by an employer, Tracey finds that workers are not allowed legally to respond with a strike protest during the period of a Certified Agreement.

The new Fair Work Australia, like Work Choices, only has the power to order the “unprotected action” to stop, thus defeating the industrial action, a blatant denial of the human right to strike.

Tracey’s union argues in collective bargaining for a new collective agreement over 18 months with no resolution, so steps for lawful enterprise protected action are started. She finds her employer, the same as under Work Choices, could use lawyers to delay the protected action ballot, rather than dealing with their claims.

Corporate lawyers argue on technicalities so that the proposed industrial action may be deemed unlawful.

After many months of delay and legalisms by her employer, the protected action ballot had strong support. The work force was at last able to bargain. Tracey finds out that there were many ways under the FWB, retaining the same provisions as Work Choices, that their lawful enterprise strike could be stopped.

Where the employer has a contractor affected, who then applies as a third party to stop the protected action, then the right to strike can be frustrated. A State Labor government as employer used against lawful teachers’ industrial action the ‘right’ of a student affected as third party to stop the strike!

Tracey is astounded that as industrial relations minister Gillard still has the power to stop a strike!

Tracey meets many women like her in her industry. She joins the union organising on a national industry basis. She is shocked to find that the FWB retained the Work Choices bans on pattern or industry bargaining industrial action.

She sees the hypocrisy of MPs setting their wages comparatively and then pattern bargaining to flow the increases to other MPs.

Tracey does not have the freedom to bargain for her collective interests in her industry and, as a last resort, the right to take industrial action. The FWB’s fundamentalist approach of only allowing enterprise “protected action” retains one of the worst anti-union regimes in the world, far below ILO standards.

Tracey heard Kevin Rudd and all ALP MPs championed ILO minimum standards when in opposition and criticised Work Choices for being in breach of those standards.

But in government Rudd’s FWB flouts ILO obligations.

Tracey agrees with the ACTU advertisement against the Liberals/Nationals. She is angry at the same Liberal lies being peddled – the endlessly recycled Peter-Reith-big-lie that unfair dismissal laws creates unemployment! Tracey is disgusted at Costello’s anti-union rants.

Tracey is scared of job and hour’s cutbacks and wage reductions as Australia spirals into a longer recession. Tracey believes it is common sense that enhancing workers’ rights with improvements to the FWB and delivering on wage increases and boosting demand is the better strategy for economic stimulation.

Tracey knows that Work Choices has not been repealed yet, a promise that is long overdue.

She wants the FWB to be passed. Some workers will have new rights. “Fairness” is back.

Tracey knows the ACTU and unions proposed significant amendments to the FWB in the Senate submissions but largely ignored by parliament. (http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm)

Tracey’s friend is a builders labourer battling the most repressive anti-union Building and Construction Act and the ABCC, Australia’s shameful star chamber with continuing attacks on rights for organising and to strike. Rudd is keeping it until 2010. But even then the FWB represses industrial action.

Tracey is opposed to employers getting their way on what union is in a Greenfield site.

Tracey knows that unions are more than bargaining reps, and is worried that the proper role of the union is not recognised in the FWB.

Tracey knows many mothers and parents to be waiting for the government’s promise on paid maternity leave.

In this great global recession, all workers entitlements ought to be protected, but Tracey knows of many whose entitlements are at risk. Where is the national scheme to improve the inadequate Gears programme, asks Tracey?

How are Australia’s outworkers to fare under the FWB? Tracey hears that amendments to the FWB are necessary.

Tracey like everyone has had her superannuation returns collapse. The minimum 9% superannuation is even more inadequate for retirement incomes.

Tracey hates the Banks even more when they make thousands of Australians redundant sending their jobs overseas, and when public money bolsters their position in the world financial crisis.

Is all of this ‘fairness’ Tracey can believe in?

When Tracey learns of all of the FWB shortfalls, she thinks it is like still living in a Work Choices 1984-world, but with a new spin: “all is fairness”.

She knows that the powerful corporations still rule, and feels she is an appendage of whatever the corporation demands.

An ALP MP tells Tracey: “You cannot get all the rights you want. The FWB is balanced, as employers have to be protected in this capitalist crisis. Your concerns are unfinished business after the next election.”

She sees this as the sell-out of the Your Rights at Work campaign.

She with many others won against the most ruthless and relentless right-wing PM. But we have not won all of the workplace rights for a fair system in this recession, where corporates are still powerful.

Although rightfully pessimistic about all of this, Tracey has hope unions press her rights at work.

The struggle to protect the economic, social and occupational interests of workers is to take a major effort.

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