Fair Work?

How fair is the Fair Work Act 2009? A socio-political legal analysis
By Michael Tubbs

The Opposition’s anti-union and anti-employee WorkChoices IR regime cost it Government on 24 November 2007. Thus one would expect the new
Rudd Government’s Fair Work Act (The Act) to be the complete opposite – liberating.

Unfortunately, inexplicably this is not so! The Act has got copious amounts of laws, but little or no common sense or practical application for a 21st
century work place.

For example under The Act (Div3), if there are 100, 200, etc, etc,
employees in an enterprise, it is possible to have that many different
“bargaining representatives”, negotiating all of the multiple
employee “enterprise agreements”, instead of just one or two trade
unions.

Ironically, it was this sort of stupidity (with the then
prevailing Common Law contract of employment), which led a
19th Century English Royal Commission on Trade Unions to find
great benefit in having trade unions legitimised.

In 2005 a new phase of IR laws was authorised by parliament and
then by the High Court in its WorkChoices finding – the ‘legislative
regime’ phase.

This phase combines penal and monetary coercion, with thousands upon thousands of statutory or regulatory minutia of prescriptive laws.

This approach sought to minimize or even neutralise the exercisable rights and freedoms of employees and the operational effectiveness of trade unions, by tying them up with massive amounts of regulations, while not actually banning them.

The Rudd-Gillard Fair Work Act 2009 continues this Howard coercive ‘regime’ phase for industrial relations.

It talks a lot about “cooperation” and “social inclusion” but in reality it promotes corporate employers’ interests for “productive” workplaces
“economic growth” overlaid by a coercive “tough cop on the beat’,
now patrolling all Federal workplaces.

The Act subtly serves the dualism of a uniform, still developing
global – but nationally regulated – corporate economy, with a
national, patriarchal regime for the corporate workplace.

For Howard this regime centered on obscure employee “choices” and
for the new Rudd Government it centers on equally obscure
employee ‘rights’. The regimentation of all rights is always the
enemy of rights.

The ‘legislative regime’ phase is akin to an army, with a ‘command’
or ‘order’ for almost everything done, by or for employees under
the Act, other than to do as commanded or ordered by corporate
employers.

For all of The Act’s high sounding “objects and aims”, an intention of the Act is to force employees on their own, to do as they are told by their private corporate employers.

The Act with its alphabet soup of dos and donts has an underlying intention to
constrain the cost of labour (wages), while increasing the profits
(productivity) of corporate employers.

Compare pre-WorkChoices and Fair Work Act

The Fair Work Act is some 648 pages long, contains (not including
regulation) at least 2,600 laws, including some 374 words or terms
in the Macquarie Dictionary.

The Act has some 49 different computations of offences
which carry a sentence of imprisonment, plus some 166 “civil”
breaches, which are euphemistically called “remedies”, in the form
of hefty fines, along with a power to order that costs be paid by
employees if found to have committed a “civil” breach of the Act.

The Act provides for a multi-layered bureaucracy (an absolute
necessity for ‘a regimented’ IR system) involving some 14 different
courts and tribunals.

This Fair Work Act not only degrades employees into being quasi robots or slaves, it will substantially worsen their position in February 2010, when the Australian Building and Construction Commission ‘tough cop on the beat’
industrial police gets included as a “Special Division” of the Act.

For example the existing ABCC Act itself has at least a further 624
laws, without its regulations; 88 words and terms (to be added to
the above 374 words) that have different meaning than in the
Macquarie Dictionary.

For example “building” work, in the Macquarie Dictionary is defined in just four words as: “anything built or constructed”, whereas the ABCC Act, to define ‘building work”, takes 322 words for this simple everyday notion. Silly laws
like this, as they say, ‘are made to be broken’. You would need a
Holden Ute to carry it with you.

In addition, under the ABCC Act there are at least five offences (to
add to the 49 in the Fair Work Act) which carry the penalty of imprisonment.

The ABCC Act also has potentially dozens of other activities which are “Grade A civil offences” (these carry large fines on employees amounting to thousands of dollars for each offence).

Given that a corporation cannot be imprisoned, it follows that in
general, those imprisoned will be employees or their representatives,
under the Fair Work Act. How fair is that for employees? Why this
escalation of oppressive laws on a grand scale?

The old 1904 C&A Act by comparison, which potentially covered
all workplaces throughout Australia, had (not including Regulations)
only about 100 pages (one sixth those of the Fair Work Act),
containing only some 387 laws, (one seventh as many as the Fair
Work Act) and some 53 (again about one seventh as many) words
or terms that have a different meaning, than their meaning in the
Macquarie Dictionary.

The C&A Act carries some ten different offences which carry a sentence of imprisonment (one fifth the number of the Fair Work Act). There are no “civil” breaches as such in the C&A Act, only some half a dozen offences punishable
by a fine. There could be no order made for costs against an employee in a matter before the old C&A Commission. It is clear that the Fair Work Act is prescriptive and extremely coercive and punitive.

The Act is not about rights, but is about laying down the
law unfairly, for employees, their families and their unions.
What we are ultimately looking at, as a minimum with The Act, is
something over 3000 new laws, plus however many regulations
(laws) promulgated for The Act’s implementation. There is not a
word of love in it for employees.

The Act’s outrageous volume of laws needs the spectre of imprisonment hanging over employees heads, to force their adherence to its contents. It won’t work and can’t work where ‘free’ labour is supposed to exist.

The old C&A Act “promoted” trade unionism as a main “object”
and aim in the workplace. But in the approximately 165,000 words
of the new Act, amazingly, not once do the words “trade union”
appear. It is as if the Act not only wants to write trade unions out of
history, but also ultimately, out of future work places. It reads like
reactionary bunkum.

If the Government really is for employee “social inclusion”, why
not do what that reforming South Australian, now deceased, Labor
Premier Don Dunstan said 35 years ago was “the next necessary
step” after the industrial revolution – “worker participation”.

Do they really think they can run a modern workplace with a military
regime like the Fair Work Act represents? The government and
private corporatism either embraces unionism and worker
participation or they go to the wall, like so very many of the past
and recent private corporations have done.

Punitive coercion cannot ever bring about “social inclusion”, can it? It’s contradictory!

Just two points demonstrate how bad The Act is.

First, there is one employee killed per week in the building and
construction industry. It is considerably easier and cheaper to kill
and maim employees under Federal Health and Safety Laws, than
for example under the New South Wales laws, basically because
Federal laws do not extend rights to employees and unions for their
health and safety at work or for common law rights for work injuries.

Everywhere else in society people are entitled at law to defend
themselves, but apparently not under Federal IR law at work. The
Act, because it is coercive, refuses to fully recognise employee
rights or their right to representation.

Because of that, it entrenches unsafe work places and practices, and it is at least 30 years behind the times.

The Act makes it a crime for employees to take ‘self defense’ preventative action.

The second is the “right of entry” to a workplace by an employee’s
representative – a trade union official.

The Act has approximately 132 laws (even without regulations), covering the exercise of this so-called ‘right’.

If it was not so serious this would be laughable.

As the Courts have said, and common sense dictates, when a right
becomes so heavily circumscribed, then it ceases to be a right.

But the States’ own trespass laws cover the situation where a person
enters or is wrongly on somebody else’s property, don’t they? So
what gives, with all the extra over-the-top laws of ‘entry’ – or is it
‘no entry’?

I doubt the validity of The Act’s right of entry laws.

It is notable that the Fair Work Act (s494) even purports to exclude
State Health and Safety officers from inspecting a workplace.

Upon what constitutional authority it does not say.

Whatever a Federal government can direct a corporation to do, it
does not follow that it can similarly then direct an employee what
to do and even less their union!

I do not think the Federal government can constitutionally direct
either an employee or an employee’s representative, concerning
their “intercourse” in trade and commerce (see s92).

In my view the whole of Chapter 2 Part 2-4 Division 4 of The Act
is seriously flawed and is likely in important parts or even the whole,
to be unconstitutional.

I do not think The Act has any legal standing for employees whatsoever or for their independent union representatives.

It is inconsistent with both s92 and s51 (xxxv) of the Constitution.

A person gets their basic rights and freedoms, not from the Federal
Government, but from being a resident of any one of the States
(the bodies which actually formed the Federation), according to
the High Court Communist Party case in 1950 (a 6-1 ruling).

Reprinted from Search News Volume 16 No 5 2009

www.search.org

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