Fair Work Act Review
Submission by Chris White
I recommended two changes for more secure work to the Independent Inquiry into Insecure Work in Australia.
1. Amend the Fair Work Act to have a real right to strike.
2. Amend the Fair Work Act to restrict casual and other forms of precarious work to a limited period. Provide the requirement for on-going work, more secure contracts of employment. Fair Work Australia is to have the power and discretion to conciliate and arbitrate the transition to the more secure employment contracts.
1. The right to strike
I submit the lawful strike is essential for collective bargaining. WorkChoices’ repressive provisions with unnecessary and unfair sanctions against industrial action were retained in the Fair Work Act and all have to be repealed for effective collective bargaining system.
Only with employees’ ability to bargain with protected action without being ordered back to work and suffering penalties can employees and their unions be able to respond to the dire precarious work of continuing capitalist labour relations.
The international capitalist crisis daily worsens putting more pressure on business to move to precarious and exploitative work. In response, unions have the Secure Jobs campaign.
What is essential is for employees to have the FWA amended to protect the right to strike in order to balance the more powerful corporate and government forces.
I have written on my recommendations for a right to strike. I reference articles on the arguments for amendments to the Fair Work Act to protect the right to strike.
I argue for the fire walling of industrial action for protection for employees and their unions so that sanctions are removed.
I argue such an amendment is vital for employees in all the forms of non-standard work.
I urge as necessary the repeal of the Australian Building and Construction Improvement Act, and the ABCC functions and powers and not replace it with the current amendments before Parliament that have no merit.
All of the existing provisions from the earlier Workplace Relations Act and Work Choices still in the current repressive regime against strikes are to be deleted, as well as those in other laws such as the Trade Practices Act and the Crimes Act.
Instead, a broad legal protection for all forms of industrial action is inserted.
At a minimum, commonly accepted ILO principles as required protecting the right to strike are to be implemented. The history of such ILO principles and their non-application by Australia is well known in the industrial relations and labour law community.
Furthermore, as a result to the Qantas lockout, the employer is to be denied this bargaining weapon of the lockout and the provisions in FWA deleted.
Much criticism has occurred about the failure of the FWA to have an effective right to strike by industrial relations specialists, labour law academics, the ACTU and unions. In particular, see the critical analysis in Shae McCrystal’s book ‘The Right to Strike in Australia’. I recommend Professor Keith Ewing’s research on the right to strike and Tania Novitz on the ILO’s protection for the right to strike.
Fire walling the right to strike is necessary for parliament to accept as essential for workers to have some power in this capitalist crisis and to assist strategies for secure jobs.
2. Job Security in the Fair Work Act
The overall merit evidence from employees’ adverse experiences in precarious work and the unjust impact socially in the Australian community requires Fair Work Act amendments for job security. Here are key recommendations.
2.1 One amendment is to clearly restrict casual employment to only short periods, such as 4 hours daily and no more than fortnightly.
Then a provision that compels employers to move to on-going and more permanent employment and allows employees the transition from existing casualisation to these more permanent on-going employment contracts.
Such a provision has bargaining rights for precarious workers to change to secure employment with the terms to be negotiated and agreed. The clear right exists when not being able to reach an agreement for the employee(s) to access conciliation and arbitration from FWA to gain orders for process steps for more permanent work.
The same applies to ending many short-term contracts. After two short term contracts, then the employer is required to move to more permanent, on-going contracts.
Special attention is to support any employee with service e.g. more than seven years who is to be on a permanent contract. As well, an existing employee with 10 years before retirement is to be on a permanent contract. Employees in other non-standard employment sectors are to be protected such as in the disability sector.
2.2 The next new section is to ensure that labour-hire contract provisions are not attractive
to employers for lowering costs. The aim is have protections dealing with precarious work in the labour-hire industry. Such provisions are to ensure the same wages and conditions
in the user firm in similar work. Employees must be hired permanently for not less
than two years. There is a formal written contract with the same rate and benefits. The
worker may join the user firm’s union. Labour-hire is to be implemented generally for
short-term, supplementary and substitute positions. Provisions for transition and
compliance need to be put in place.
2.3 Strengthening enforcement provisions by employees and unions to ensure that employers pay legal wages and comply with all employment conditions of the contracts of employment, with speedy measures for exploited workers to recover wages. Increased penalties and damages against non-complying employers.
2.4 A provision that deems for compliance that legal minimums exist in contracts of employment so that those entitlements can be enforced even if there is no evidence of a written contract of employment.
2.5 Amend the unfair dismissal section so that the right applies to all employees, irrespective of the employee’s status or contract of employment or the size of the employer’s workforce. The big lie that employers may not employ was made up by Ian Hanke Peter Reith’s press secretary and is repeated by Liberals and Nationals ad nauseum in the media, but is to be rejected. Precarious workers ‘dismissed’ ought to have the lawful right to argue their case about why they were unreasonably dismissed before a user friendly FWA conciliator then arbitrator for reinstatement.
2.6 I urge strengthened redundancy provisions in a new minimum entitlement that has a provision for three months notice and one month’s pay for each year of service for redundant employees. Such a job security measure as a national entitlement deters employers from making employees redundant and assists redundant employees in this recessionary period.
2.7 A specific process provision for precarious workers with non-standard work arrangements to have the legal right to union representation and to be able to organise in unions.
I support the ACTU campaign for Secure Jobs.
I attach reference articles. I attach a brochure from the National Right to Strike campaign to have the FWA ILO compliant.
Insecure work issues in Australia are similar to those overseas. I urge investigation of other countries attempts to provide greater protection for their employees. As well, I recommend China’s labour relations and laws grappling with insecure work.
I have an arts/law degree from the University of Adelaide. I worked in SA for the AWU, the LHMU and then was elected as Assistant Secretary and later Secretary of the UTLC of SA. I then in Canberra worked for ASMOF and the NTEU and at the ANU teaching in Politics.
I have posts on the right to strike on my blog http://chriswhiteonline.org
I now live in Darwin and am a Senior Research Fellow at The Northern Institute Charles Darwin University.
Cameron, C. (1970) ‘Industrial protest: the Right to Strike’ University of Adelaide, WEA ‘Social order and the right to dissent’ 27/11/1970. (Australian Parliamentary Library).
Ewing, K. (2004) ‘Laws Against Strikes Revisited’, in Barnard C, Deakin S and Morris G editors ‘The Future of Labour Law’ (Hart Publishing, Oxford, 2004).
Ewing, K. (2008) ‘Restoring rights at work Lessons from the UK.’ Professor of Law, Kings College London (Published 10.11.08 by Catalyst http://www.catalyst.org.au)
Glasbeek, H. (2009) ‘Rudderless in a Sea of Choices: The Defeat of Your Rights At Work—Analysis and a Possible Response’ Professor Emeritus and Senior Scholar Osgoode Hall Law School, York University,Toronto and Visiting Professorial Fellow, Victoria University, Melbourne. Dissent Autumn/Winter 2009, p33 and posted http://chriswhiteonline.org
Peetz, D. (2005) 151 Industrial Relations and Labour Law Academics Senate WorkChoices No 175. http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/submissions/sublist
Roberts, T. (2005) ‘Civil Disturbance’ Workers Online June 2005, http://workers.labor.net.au/features/200506/c_historicalfeature_tom.html; ‘Into the Industrial Dark Ages: the civil liberties implications of the Federal Government’s Industrial Laws for the Australian Construction Industry’ in Civil Liberty, the Journal of the NSW Council for Civil Liberties Inc. June 2005
Romeyn, J. (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ Published by the Australian Parliamentary Library
International Centre for Trade Union Rights ICTUR (1999,2002-2007) Senate Submissions into WR Act and WorkChoices submission no.185. http://parlinofoweb.aph.gov.au ILO 1983, 1998, 1999 – 2003 Reports of the Committee of Experts on the Application of Conventions and Recommendation www.ilo.org
McCrystal, S. ‘Shifting the balance of power in collective bargaining: Australian law, industrial action and WorkChoices’, The Economic and Labour Relations Review, 16(2), May 2006, 210;
McCrystal, S. ‘Smothering the right to strike: WorkChoices and Industrial action’, 19 (2006) Australian Journal of Labour Law, p. 201
McCrystal, S. 2009 ‘A New Consensus: The Coalition, the ALP and the Regulation of Industrial Action’ in Fair Work The new Workplace Laws and the WorkChoices Legacy edited A. Forsyth and A Stewart (Federation Press, Sydney).
Novitz, T. (2003) International and European Protection of the Right to Strike A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union (Oxford University Press).
White, C. (2010) ‘Firewalling the right to strike in Australia?’ chapter 8 in G Radhika
Anand (ed). ‘The Right to Strike’(Amicus The Icfai University Press).
White, C. (2009) Senate submission the Fair Work Bill No 122 http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
White C (2008) ‘The right to strike’ chapter in Evatt papers Sheil, C (ed) ‘The State of Industrial Relations’, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.
White, C. (2005) ILO Protection of the Right to Strike: ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html.
White, C (2005) ‘The right to politically strike? The case for re-evaluation’. Evatt Foundation on-line13/4/2005: http://evatt.labor.net.au/publications/papers/139.html
White, C. (2004). ‘Right to strike issues in the October 2003 Universities national strike’ AIRAANZ 2004
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White, C. (2005) Senate Submission on the Building and Construction Improvement Bill
White, C. (2005) Senate Submission on WorkChoices Bill (2005) Senate Inquiry submission No. 129;www.aph.gov go to Senate submissions
White, C. (2005) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No56, 66. www.jape.org.
White, C. (2005) ‘Howard makes the ‘blue’ unlawful. The right to strike is down the WC’, Evatt Foundation on-line 2 November 2005, http://evatt.labor.net.au/news/358.html
White, C. (2006) pamphlet on ‘How Howard is taking away the right to strike.’
White, C. (2005) ‘Howard’s IR plans’ ICTUR International Union Rights Journal
White, C. (2006) ‘Provoking Building and Construction Workers’ 20th Conference AIRAANZ 21st Century Work: High Road or Low Road? http://www.aomevents.com/conferences/AIRAANZ/papers.php.New Matilda 7th July 2006 http://www.newmatilda.com
White, C. (2006) ‘The Perth 2007 and the right to strike’ ICTUR International Centre for Trade Union Rights magazine International Union Rights. Volume 13. Issue 3.
White, C. (2006) ‘The Perth 107 Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au
White, C. (2006) ‘Right to strike contest. Provoking Building Unionists’ http://www.aeufederal.org.au/E07/FR/Perth107.pdf
White, C. (2006) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.
White,C.(2007).‘What limits the right to strike?’ Blog: Larvatus Prodeo http://larvatusprodeo.net/2007/05/21/guest-post-by-chris-white-what-limits-the-right-to-strike/
White,C.(2007)Criticism of Kevin Rudd’s limitations on the Right to Strike.www.aeufederal.org.au/E07/election
White,C.(2007) Howard’s Prohibited Content on strikes http://solidarity.redrag.net/2007/05/03/prohibited-content/
White, C. (2007) ‘Restore the Right to Strike’ www.greenleft.org.au/2007/711/36927
White, C. (2007) ‘From Penal Colony to Penal Powers’, www.greenleft.org.au/2007/715/37126
White, C. (2007) ‘The Right to Strike to Save the Environment’
White, C. (2007) ‘China Labour Law’ International Union Rights Journal,
International, 14(1), p17
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Australia’, Evatt Foundation, Sydney, http://evatt.org.au/news/451.html
White, C. (2007) review of the DVD film by Joe Loh ‘Constructing Fear: Australia’s Secret Industrial Inquisition’ (www.constructingfear.com.au)
White, C. (2004) Review Jim Marr, ‘First the Verdict The true story of the Building Industry Royal Commission’ Australian Options, No. 35, Summer 2004 www.australian-options.org.au.
White, C. (2004) ‘Howard Threatens the Right to Strike’ Australian Options, No. 38