About 100 unionists packed the Unions NSW Atrium on May 14 to discuss the right to strike campaign, at a fringe event of the Australian Council of Trade Unions (ACTU) Congress that began the same day.

Titled “Advance Australia Fair? Australian jobs and the right to strike”, the forum was sponsored by the Victorian Trades Hall Council. VTHC secretary Brian Boyd said it had not generally sponsored or organised ACTU fringe events, but this campaign warranted it.

The VTHC launched the Right to Strike campaign after it was first raised at the December 2010 Union and Community Summer School.

The forum was opened by Unions NSW secretary Mark Lennon, who said that in NSW “there is no right to strike … and with Barry O’Farrell’s new laws, there is no right for unions to even affiliate to a political party of their choice any longer in NSW”.

Victorian Electrical Trades Union secretary Dean Mighell discussed what was happening to jobs of his members while their ability to take industrial action was restricted. “Jobs are being offshored to Mexico, where capital can get cheaper labour costs … Free trade is cut-throat.” He said the current mining boom was concerning: “We need to think beyond the quarry.”

ACTU president Ged Kearney discussed the union movement’s campaign around insecure work, and said the right to strike is a fundamental right.

Len Cooper, Victorian secretary of the Communications, Electrical and Plumbing Union said: “We live in a country that is described as democratic – yet the basics of international labour laws are excluding both federal and state law.

“This is not a small issue – this affects 11 million workers. This is about the right to strike, the right to picket, the right to take solidarity action.”

Cooper said that in the capitalist crisis, many militant unionists were being sacked or seeing their jobs outsourced or offshored.

We need to defend the right to strike. And the right to strike will only be won by striking,” he said to cheers from the crowd.

Chris White, former secretary of the South Australian Trades and Labour Council and a union activist for 30 years, told the meeting that all penal powers needed to be repealed, including “all restrictions in Fair Work Australia that were adopted word-for-word from Work Choices”.

“The right to strike should not mean having to go to a commission, giving three days notice so that employers get forewarning to make contingencies to undermine workers’ industrial action. It should just be about a meeting of workers making a decision collectively.”

White also called for the abolition of the Australian Building and Construction Commission completely, not just in name.

White said the importance of striking should not be limited to economic interests: “Unions should be able to take solidarity strikes. In the past, when Indonesia was committing genocide in East Timor, we used to be able to strike to support the people of East Timor.”

He also said the question of workers’ control and self-management needs to be on the agenda. “Workers can control our own economy without capitalists.”

In discussion, South Coast Labour Council secretary Arthur Rorris spoke strongly in favour of the campaign, saying it shouldn’t be a fringe event, and “the right to strike is the main game. Capital can strike, and we should be able to as well. If you don’t have the right to withdraw labour, you are a slave.”

Geelong Trades Hall Secretary Tim Gooden said the campaign needed to spread. He said unions should not be allowed to be picked off, but build a fighting alliance together to push the right to strike.

Gooden said the experience of unions in the Clarrie OShea case in 1969 showed that the battle to free O’Shea, who was jailed for striking, was not a short one, but a campaign built over years.

Susan Price, branch secretary of the National Tertiary Education Union at the University of NSW, said attendees should sign on to a joint statement in support of the right to strike campaign that was initiated in NSW. Many rank-and-file and union leaders had pledged support.

Initial NSW signatories to the statement include veteran trade unionist Fred Moore; assistant national secretary of the MUA Warren Smith, deputy branch secretary of the MUA in Sydney Paul Keating, NSW state secretary of the CFMEU Brian Parker, University of NSW branch secretary of the NTEU Susan Price, Sydney University branch secretary of the NTEU Michael Thomson, and state councillor of NSW Teachers Federation John Gauci.

The ACTU Congress voted on a 釘etter Bargaining Policy・ that included “restoring an effective right to strike”. This policy notes that the International Labour Organisation has described Fair Work Australia’s regulation of industrial action as 兎xcessive・ and calls for industrial action to be available without a secret ballot. The policy also calls for bosses to have to give three days notice for lockouts and not be able to use replacement labour during industrial action. It also demands an end to the outlawing of pattern bargaining, and for an end to workers or their unions facing coercive or punitive court orders from industrial action, unless Fair Work Australia has ordered an end to the industrial action.

[To sign the right to strike statement or for more information, contact Susan Price on 0400 320 602 or pricesusan9@gmail.com.]
From GLW
http://www.greenleft.org.au/node/51070

by Humphrey McQueen

For months, the bosses, their stenographers in the mass media and their political agents have been publicising corruption in the East Branch of the Health Services Union to tar the whole of the labour movement.

The responses from the Killard government and the ACTU have been as tardy as they have been lame. The best their leaders can mouth is that the HSU is the one rotten apple. This apologetic line is the latest instance of how organised labour is on the back foot.

The most obvious example of this retreat has been in regard to the Australian Building and Construction Commission where the Construction Division of the CFMEU has never taken the fight up to the bosses by focusing on their ‘ingrained culture’ of criminality. Too often the union pleads: ‘we’re not as thuggish as they say we are’.
The union is vigorous in attacking OH&S violations and detailing non-payment of wages, Super and taxes, But these offences are confined to the workplace and don’t help the populace to see the nature of capitalism.

Exploitation is not theft

Before documenting a few recent instances from the avalanche of the activities considered crimes even by the standards of bourgeois justice, it is vital to be clear about how the capitalist system works.

All the money that capitalists steal from each other and swindle out of governments and the public comes from the surplus value added by wage-slaves.

That exploitation is not theft. On average, capitalists pay wage-slaves the full value of the cost of producing the one commodity – their labour-power – that we have for sale.

That exchange is the core of capitalism. Once that surplus value has been produced, sections of capital battle to get their hands on as much of it as possible. That is where the most of the swindling comes in. In some cases, the original capitalist can be left with no profit. No commentator on the accumulation of capital has paid as much attention to swindling as did Marx who nonetheless kept it in its place.

Construction

Collusive tendering and price-fixing are the ‘ingrained culture’ of the employers in this sector. In 1995, Leighton’s then CEO, Wal King, justified his company’s use of false invoices to conceal price-fixing on the Sydney Casino as ‘the culture … and custom that had been long-standing in the industry that had been handed on for years.’ So had King’s excuse.

In 1911, the NSW MBA justified its members’ involvement in illegal commissions by saying that they ‘should be openly recognised’ as ‘universal and worldwide’.

The 1995 report branded King and Leightons as ‘not of good repute, having regard to character, honesty and integrity’. Despite this, he and Leightons continued to flourish.

They were not banned from sites, unlike CFMEU organisers defending the lives of their members.

The NSW Gyles Royal Commission in 1990 forced the resignation of the executive of the NSW MBA which had been a clearing house for collusive tenders. This unanticipated outcome was similar to that from the Royal Commission into the Ship Painters and Dockers which had exposed bottom-of-the harbor schemes across the big end of town.
Howard did not make that mistake in setting the terms of reference for the Cole inquisition into the building and construction unions.

Killard followed suit when she excluded health and safety from the review of the ABCC, which thereby had an easy time in finding that her ‘tough cop on the beat’ was necessary.

The gravest matter in building and construction is the Hardie Asbestos case. The High Court endorsed the disbarring of its directors for seven years for rigging the books about the compensation fund. There is no chance of their being charged with complicity in the mass murder of workers since, under capitalism, killing is not murder when done for profit.

In April, Lend Lease was made to pay fines and restitution of $54USm. for ten years of ‘a systematic pattern of audacious fraud’ in the US of A. Yet again, the company’s defence was ‘everyone does it’. Yet again, Lend Lease is allowed to tender for government contracts.

Funny money

John Gay, former head at Gunns in Tasmania, has been charged on two counts of insider trading late in 2011. It is alleged that he sold shares in Gunns knowing that funds for its pulp mill were not going forthcoming.
In the same week as Gay faced court on 14 May, the Securities Commission (ASIC) reported a boom in insider-trading, with as many as 200 alerts received every day, that is, some 50,000 a year. The authorities managed to get eleven convictions in the three years to December, a slight improvement over their ten successes in the decade before 2008. The financialisation of the economy has inserted multiple levels of intermediaries with access to advance information about company accounts. The disproportion of alerts to convictions is a measure of how light is the hand of the law on corporate crooks.

The shopping center giant Centro lost track of more than $3 billion and thereby misled shareholders in 2007. A judge fined its Chief Financial Officer $30,000 and disqualified him for two years. In delivering his findings, his honour warned off ASIC by ruling that the Centro board had not been personally dishonest. Indeed, they had been ‘intelligent, conscientious and well-advised’. Perhaps if they had been stupid, lazy and ignorant they would not have lost anything? We might compare the court’s kid-glove treatment of Centro’s bosses with what its managers would have done to an honest, intelligent, conscientious and well-advised shopkeeper who happened to lose track of even $3,000 in unpaid rents.

Much smaller in one sense yet also far larger in its implication is the plundering of Super fund Trio by its executives. Alongside the Wollongong battlers whose losses were covered by government guarantees were several hundred leafy North Shore investors who went for Trio’s self-managed funds because they promised higher returns. Where did those ‘victims’ think the extra spondoolicks were going to come from if not from shonky deals such as Trio’s transferring $124m. to a tax haven?

The problem is not the individual rip-off merchant or a few greedy Pymble millionaires, but the institutionalisation of tax havens with the connivance of governments across the globe.
ASIC recently fined Leightons $300,000 for non-disclosure of information to the stock exchange. That is a hanging offence because they were ripping off other capitalists. A fine for killing for profit can be as little as $35,000. Bourgeois justice values a worker’s life at one-eighth of a share-holder’s monetary loss.

Bribes
Leighton’s is also under investigation here and in Iraq into whether one of its subsidiaries paid bribes to get information to win a contract with South Oil Co.

Queensland ex-Minister Gordon Nuttall is in jail for taking bribes from mining magnate Ken Talbot. Talbot was due to stand trial on thirty-five charges of corruption but died in a plane crash between Cameroon and the Congo, two of the most corrupt countries on that continent. You can bet your bottom dollar that Talbot had been as generous to the thugs ruling over those mines as he was to Nuttall. Perhaps his plane crashed because it was overloaded with gifts.

In the wake of the Wheat Board’s bribery in Iraq, the Reserve Bank of Australia got around to cleaning up its act.

Between 2001 and 2009, two subsidiaries, Note Printing Australia and Securency, paid $50m. to agents to win contracts to supply plasticised bank notes. How much of this payout ended up bribing officials in places like Nepal? How much did the RBA oard know, and when did they know it?

On 4 April this year, thirty Victorian building inspectors were charged with ‘alleged corruption, serious misconduct and harassment’; they allegedly took kickbacks to block formal investigations. On the same day, the State government announced the formation of its own Construction Stasi to ban the flying of the Eureka flag on sites. There will be no special police to investigate who bribed the inspectors.

Killing no murder

Four trucking companies are up on 1,000 charges of disabling the speed governors on their trucks. The practice came to light after a truck killed three people in January. In the aftermath, NSW police found that scores of governors at four firms had been tampered with.

The Transport Workers’ Union repeated its accusation against Coles and Woolworths for imposing unsafe delivery schedules. For proof, stop at the Truckies’ memorial at Tarcutta. The employers’ association defence is that executives sit in offices and don’t sully their suits by tinkering with accelerators. Hence, any blame rests with the drivers. At law, corporations don’t have a soul to condemn or a backside to kick, yet they seem well supplied with arseholes.

Price-fixing

One QANTAS executive in the US went to gaol for eight months in 2008 for colluding with competitors to fix freight rates.

Qantas has also been fined by the European Commission, the New Zealand authorities and paid $26m. in penalties early last year in the US of A. If Qantas bosses were indigenous lads in Western Australia they would be behind bars under the three-strikes-and-you’re-in rule.

Dick Pratt made a name for himself as a philanthropist before the Competition Commission fined him $36m. for price-fixing. By colluding on the price of cardboard cartons, Pratt’s Visy and rival Amcor stole money from every pensioner who bought a packet of corn-flakes. Out of that rip-off of the most vulnerable, Pratt made a big fellow of himself.

It is typical of the ingrained culture of capitalism that his associates said that the head of the Competition Commission, Gordon Samuel, had behaved badly in pursuing the case because he had been a guest at Pratt’s house.

Prime Minister Rudd knew about the scam yet flew to the funeral to pay homage to one of the biggest crooks yet to be exposed in Australia.
Transfield’s co-founder, Franco Belgiorno-Nettis, subsidised the visual arts out of the profits he made from exploiting workers while swindling customers and governments. He confessed to his corporation’s official historian that he had engaged in corruption and strong-arm tactics: ‘We cover this with a veneer of civilization.’ In a class society, each act of civilisation is met by a piece of barbarism exacted from workers whose creativity and suffering pay for the benefactor’s noble gestures.

Activists must voice class bitterness and class contempt.

We lose by cringing before bad behaviour in one union.

Instead, we must go straight for the corporate jugular to publicise organised robbers and serial killers.

Dickens got it half wrong in Bleak House when he has detective Bucket observe that, while murder could be done by amateurs, thieving needed professionals.

Dickens was right to foresee that Pratt did not wake up one morning after a blameless career in business and decide to steal tens of millions of dollars. He was a professional thief. Moreover, killing for profit is no work for amateurs as asbestos makes clear.

An International Class-War Crimes Tribunal would charge the Hardie executives with ‘prole-cide’.

Unionists need to organise for the right to strike, for the effective strike and for workers’ control.

1. Unions’ right to strike campaign is to repeal all Fair Work Act penal powers and for a ‘firewall’ protection for workers in their unions taking industrial action.

ILO principles can prevail:

‘The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.’

The ACTU argued ILO principles with the 1993 Keating reforms for the first enterprise bargaining protected action regime, but we did not achieve all our the aims. This protected action limited right to strike was weakened under Reith’s 1996 WRAct.

‘Repressive tolerance’ of strikes under corporate legal attack moved to repression of strikes under WorkChoices – the most severely regulated anti-strike regime in the OECD world – still retained in FWA. Howard’s WC spin says ‘we are not taking away the right to strike’ but in practice unionists are not free to strike.

Still no one argues against the principles. ALP MPs and Rudd in 2005 criticised WC and supported the ILO right to strike. But the Rudd and Gillard government flouts such a right to strike.

In ACTU policies there remains scope for the endorsement of ILO principles, based on an appreciation of the right to strike as a civil, political, and socio-economic entitlement.

In 2012 right to strike amendments can go through this Parliament.

Minister Bill Shorten can first delete all of the FWA/WC strike provisions. Then insert the above ILO principles and a section to ensure no one can take a legal case against any industrial action, full stop.

Employer legal sanctions to stop strikes and fine striking workers and union officials are not available. Corporate law firms are out of industrial relations. The right to withdraw our labour-power is legally paramount over all corporate law.

What does this ‘firewall’ protection for the strike mean? Such a new FWA guarantees freedom for workers in unions to collectively bargain with strikes. Unionists are free to determine the strike processes, the timing, the negotiations, the notices etc and free to determine how we take industrial action democratically in paid workers’ meetings. Free to pursue our demands not in anyway legally constrained, not restricted by old legalities of ‘matters pertaining to employment’ or so-called ‘not allowed’ matters. Free to put on industrial pressure for claims not only for wages and conditions in collective agreements but over so-called management prerogative decisions, over industry development strategies, for job protection provisions, environmental demands etc.

The right to strike on occupational health and safety is absolute.

The employer right to lockout is repealed. No Minister has the discretion to stop industrial action.

Industry and pattern bargaining industrial action is lawful as the industrial parties are free to determine at what level to bargain.

The Building and Construction regime now in FWA is abolished. Restrictions in trade-related industries, such as the waterfront are repealed.

The lawful strike extends internationally – essential for unions to organise globally in response to powerful multi-national corporate interests.

This right to strike politically is a last resort response to bad government policy affecting workers’ interests. Workers, as citizens in a democracy, have legal protection for political protest assemblies e.g. against WorkChoices; no penalties against workers taking time to attend ‘No War’ rallies or on foreign affairs protesting against dictatorships e.g. in Fiji and fascist acts such as Indonesian TNI genocide against the East Timorese. The lawful strike supports human rights struggles. Provisions in the Crimes Act and anti-terror laws are repealed. No exceptions such as ‘for damage to persons or property’.

Union officials organising the strike have legal protection against ancient British master and servant common law actions in tort, contract and in equity – no possibility of crippling damages. Industrial disputes are settled by the parties or in the FWA system and not in the courts.

Picketing is protected industrial action not subject to injunctions. Employers cannot employ ‘replacement’ labour to break a strike, as this is a violation of our freedom of association. The individual on strike is protected: no return to work orders, no threat of dismissal, no victimization, no fines.

Competition law outlawing solidarity strikes and secondary boycotts is removed.

2. The question is then reviving the strike so working people can regain power and transform Australia.

Unions know the strike is the essential means for the power to win our demands, e.g. secure jobs. How workers organise a winning strike is a priority. Historically in this era strikes are essential to respond to the capitalist and environment crisis and in response to the political attacks on workers’ rights. Democratic control by workers in their unions of their industrial action is central to defeat the employers’ decisions, defeat the corporate attack and defeat right-wing ‘austerity’ cuts.

The effective strike now is very difficult because of the repressive regime and corporate/government lawyers taking legal actions against unions. Employees in their unions in enterprise bargaining have to win ‘protected’ strikes as best we can.

Recruitment succeeds when integrated into successful strike action.

We can criticize past union leaders shifting resources to organize the un–unionized sectors, as this has failed to revive unions. We cannot resolve our crisis simply by adding new members – without a powerful strike in place.

Planned lengthy strikes are necessary to organise. Australian unions are good at the one-day protest publicity strike. But this gives the illusion of struggle, distracting from our real problem, which is the lack of an effective traditional lengthy strike. Secondary bans, boycotts and solidarity strikes are a powerful means of union strength and need to be again back in practice if unions are to succeed.

Mass general strikes in many countries are organised as the global capitalist order is in another chronic crisis period with corporate and state austerity attacks on workers. Occupy activists call for a general strike on May Day. But look back through history about how general strikes happened. They are organized in the workplace by union delegates and organizers organizing their co-workers and can be done again.

Our YRAW campaign proves our capacity strategically to win in civil society and politically. We defeated Howard, but failed to secure key rights at work.

We organise outstanding social unionism struggles with community support. But to win requires the power of collective strike action. Social unionism is not a replacement for direct struggle against employers. Social unionism where the strike is abandoned loses the central role of workers at work, at the point of production.

Co-ordinated strikes against the repressive anti-strike regime requires union members organising across industries, a mass strategy to defeat the penal powers, learning from the 1960’s anti-penal powers organising model resulting in mass national ‘Clarrie O’Shea’ strikes. Working class principles justify the refusal to follow unjust and illegitimate restrictions and for the principled defiance of judicial orders to win the right to strike.

“Labour is not a commodity”, “our labour power creates wealth”, “the right to strike is a basic freedom that distinguishes us from the slave or bonded labour or from fascism”, “ freedom from corporate and HR rule” etc.

3. But the strike is only a means. We return to work with more power. Workers’ struggles can then develop with democratic self-management agendas. Workers’ control over our work to counter employers’ control is the challenge. Tactics historically are sit-ins and occupations when workers facing redundancies took over factories and ran them cooperatively. We can learn about workers self-management cooperatives. We can study workers control developments.

As unionists we can listen to the history of militant workers who acted believing we can control our work and the economy without capitalist rulers.

ACTU CONGRESS Fringe Event Public meeting
AUSTRALIAN JOBS AND THE RIGHT TO STRIKE
Discussion and Drinks: Mark Lennon, Ged Kearney,
Brian Boyd, Dean Mighell, Len Cooper & more…
Time: 5.15pm – 6.15pm Date: Monday 14 May 2012
Where: Unions NSW Atrium, Trades Hall
Job Creation
Organising rights Fair tax system
Cap Exec pay
Sham contracting Phoenixing
sponsored by VTHC

See ACTU Congress website for other Fringe events.

Please in Sydney distribute this flyer.

Right Strike ACTU Fringe flyer

by Humphrey McQueen

The book should be compulsory reading for new and old union officers and organisers; it will certainly challenge them to decide whether they are workers’ representatives or ‘workplace relations practitioners’.
Howard Guille, former secretary of the National Tertiary Education Union.

McQueen has written a remarkable book rich in stories and case studies. Therefore, a review is an incredible challenge; it is easier to recommend reading.
Jan Cremers, University of Amsterdam, CLR-News

The latest offering by radical historian Humphrey McQueen is a cracking yarn. Despite McQueen’s stature as an historian, this is anything but a sterile academic work. The strength of this history is that McQueen takes a side, and you can’t miss it! Throughout, there is the unmistakable clarity that there are bosses and there are workers.
Alison Thorne, Freedom Socialist Organiser

McQueen holds history – in this case BLF history – up as a mirror in which we can reflect on our present situation, and in which we can see an alternative future. We Built This Country is a text with which readers can engage on numerous levels – it will be a welcome addition and enhancement to what continues to be a proud BLF tradition.
Aidan Moore, former builders’ labourer, The Recorder

GOULD’S BOOK ARCADE
32 KING ST, NEWTOWN
02 9519 8947
THURSDAY, 19 APRIL 7pm for 7.30

We Built This Country, Ginninderra Press, $30
Companion volume to Framework of Flesh, Builders’ Labourers battle for health and safety (Ginninderra Press, 2009) $30.

http://workersbushtelegraph.com.au/2012/04/01/review-of-we-built-this-country/

The recorded program of Humphrey McQueen’s Book launch We Built this Country can also be listen to as a podcast on Solidarity Breakfast.

“>

26 March, 2012 | Media Release
Almost 1000 delegates representing workers from every industry and sector in Australia will attend the ACTU Congress at the Sydney Convention Centre from 15-17 May.

This is the largest and most important gathering of Australian unions. Delegates will debate and vote on policies regarding the workplace, rights, and campaigns to improve wages, conditions and quality of life for Australian workers and their families. This process sets the union agenda for a further three years.

The Congress will also elect a new Secretary to lead the ACTU, along with other office-holders.

The theme of ACTU Congress 2012 is Secure Jobs. Better Future. With about 40% of the Australian workforce employed as casuals, in labour hire, on short-term contracts or in other forms of insecure work, improving their rights, entitlements and protections is a major priority of Australian unions.

All media are invited to this important event in Sydney from 15-17 May.

Congress highlights:
High profile national and international speakers
Public release of the report of the Howe Inquiry into Insecure Work
Youth Congress (14 May)
Spotlight on union campaigns and special focus on secure jobs
Congress dinner with special guests
Policy sessions and debates: industrial relations, economic and social policy
Fringe events
Speakers will include:
The Prime Minister, Julia Gillard
The Minister for Workplace Relations, Bill Shorten
Incoming ACTU Secretary-elect
ACTU President Ged Kearney
Outgoing ACTU Secretary Jeff Lawrence
Chair of the Independent Inquiry into Insecure Work, Brian Howe
Director of the Economic Policy Institute (USA), Lawrence Mishel
General Secretary of the Fijian Trades Union Congress, Felix Anthony

More announcements will be made soon. Visit www.actucongress.org.au for more information.

Media can register their interest in attending the ACTU Congress 2012 by contacting Michelle Ryan on (03) 9664 7379 or mryan@actu.org.au

The context for the Qantas and Nurses’ dispute
Right now, about 40% of the Australian workforce is employed in “precarious”
or “flexible” employment, and most of them do not want to be there1.

The struggle for job security as direct, permanent employment is happening all
over Australia, and is central to both the Qantas and the current Victorian
Nurses disputes, although the detail is different.

In 2007 Labor rode into government on the back of the Your Rights At Work (YR@W) movement. In the midst of movement wide despair in 2005, YR@W
showed that the seemingly impregnable Howard government could be challenged and defeated because of its hated Workchoices laws. Having won government, Labor, among other things, consulted widely, including with
employer organisations, to replace Workchoices with the Fair Work Act (FWA). We have had 3 years now of the FWA.

For about 12 months various champions of Workchoices have been steadily
building a push to wind back Labor’s FWA and to restore Workchoices, with some variations and albeit under another name. The Qantas lock out and shut down was an important step in this corporate rights campaign.

The process is intended to culminate in 2 stages: first in the Labor
government’s own review of the Fair Work Act (henceforth “FWA”), due to start early next year and, secondly when there is a Federal election. Abbott has clearly stated that he wants to reverse Labor’s 5 year phase out of
statutory individual contracts (ie Australian Workplace Agreements) without
calling it Workchoices.2

The leading visible participants in this process include The Australian3 (of
course), including its “editor at large” Paul Kelly4, The Financial Review5,
Peter Reith6, Peter Costello, John Howard7, Jamie Briggs, Judith Sloan8,
1 http://securejobs.org.au/get-the-facts/
2 “Bring Back Work Contracts”, the Sydney Morning Herald, 3/12/09,Tony Abbott interview and story
by Phillip Coorey and Peter Hartcher
3 For example, The Australian, 10/10/11: “BlueScope Steel’s troubles blamed on giving ‘alarming’
control to unions”, by Hedley Thomas; 3/10/11; and http://www.theaustralian.com.au/nationalaffairs/
industrial-relations/ir-has-law-gone-too-far-with-work-choices-says-turnbull/story-fn59noo3-
1226188209225
4 Paul Kelly, Editor at Large, The Australian, http://www.theaustralian.com.au/news/opinion/blamegame-
misses-need-for-ir-reform/story-e6frg74x-1226182974056
5 For example, The Financial Review, 31/10/11: Editorial, and articles by Alan Mitchell, p. 4, Ian
Hanke p. 55, ‘Chanticleer’ back page; : “Battle for the workplace”, pp 16-20
6 For example, Lateline, ABC TV, 21/9/11
7 See http://www.abc.net.au/insiders/content/2011/s3271207.htm
2
various right wing think tanks like the Institute of Public Affairs9, particular
employer figures like Chris Corrigan, anti worker pro corporate legal firms,
especially Freehills, and a range of employer organisations10, including those
that are seen as more “moderate”, like the Australian Industry Group.

These disputes show that far from ushering a brand new world of workers rights and union power, the FWA carries a lot of Workchoices anti union and anti worker baggage.

Unfair dismissal rights are better but not extended to all workers yet. There
are stronger “general protections” for workers around “freedom of association”, but this is not extended to construction workers. The bargaining provisions remove new statutory individual contracts, but individual common
law contracts can survive along with a 5 year phase out of existing AWA’s.

It is easier for workers and unions to initiate bargaining, especially if well
organised and prepared in advance. But important features of Workchoices
bargaining are retained.

What has been confirmed in both the Qantas and
Victorian nurses disputes is the serious consequences of unprotected action,
just how regulated PIA is – it’s restricted to the bargaining process, difficult to
get it approved, and seen in sharp detail, penal powers for employers to use if
PIA becomes genuinely effective.
As one union leader put it back in 2008, there is much UNFINISHED BUSINESS. Much of what the YR@W movement thought they were fighting for did not appear in the new FWA. What gains that were achieved are now
threatened.

Power at work
It should be remembered that there was no “right to strike” in Australian
industrial law until the Keating legislation in 1993 that established protected
industrial action. Nevertheless, before that workers and their unions found a
way to use industrial action to advance their demands for a better life. But there had to be a dispute over an incident and or a demand. Strikes and other forms of industrial action were the mechanism that triggered conciliation or arbitration in “the Commission” that would deliver a settlement, as an award or
binding decision. In effect, workers industrial actions established the standards that are the ‘fair go’ that makes up the so-called “lucky country”.

Nothing that improved workers lives was ever offered or given by their employers. In that respect, nothing has really changed.

Penal clauses were available to employers to narrow and prevent effective action and included in the 1980s, as they still do, sections of the Trade
Practices Act to stop workers from supporting each other, taking solidarity
actions with and for other workers. Even the arbitration side of dispute settling
8 For example, http://www.workplaceinfo.com.au , 4/10/11
9 For example, Union Militancy Just Doesn’t Fly, The Sydney Morning Herald 31st October, 2011, John Lloyd
10 For example, http://www.workplaceinfo.com.au , 22/9/11
3
was widely viewed, not universally, as loaded against workers in favour of employers.

Workers power turns around 2 axes. First, there is the organising capacity, strategy and tactics, and ideology of unions to build workers power and influence, no matter what.

The second axis is about the statutory rights of workers to challenge their employers, to organise, combine, join unions, to
bargain, to mobilise on an industry or class wide basis, on industrial, and also
‘political’ and social matters.

If the law is repressive, unfair, or undemocratic, this first subjective axis
becomes critical, building the power to change the law, including by defying
and disobeying it, even making the most repressive elements inoperative.
This was the case in the 1950’s and sixties, when the “bans clauses” (and sometimes the Crimes Act), were the penal powers of the day, used to hamstring and prevent effective, union action. Over some years a strategy
was developed which culminated in the famous Tramways dispute that triggered the mass defiance that defeated the penal powers in 1969 11.

The Qantas dispute and now the Victorian nurses’ dispute highlight the new
penal powers of the 21st century.

However, now, these penal powers are
rooted in the Corporations power of the constitution, not the old conciliation
and arbitration power. Howard’s Workchoices came from the Corporations
power and excluded the conciliation and arbitration power. It restricted the
conciliation and arbitration rights of workers, and those of the Commission
itself. Then, under Gillard as Minister, the FWA was also written under the
Corporations power. (Even though ALP policy says that all appropriate
constitutional powers should be used.)

Regarding statutory rights and responsibilities in the FWA, two broad issues arise.

First, there are what the FWA calls the “general protections” available to
workers. Broadly, these protections are about “freedom of association”, the
rights of workers to join together in various ways to discuss and pursue their
issues. In general these are much better for workers under the FWA than
Workchoices, and capture some of the positive (also complex) features of the
old legal rights. But, the Fair Work Act does retain from Workchoices a
definition of “freedom of association” that includes “freedom from association”.

Second, there is the content and processes for bargaining “enterprise
agreements” that provide pay, conditions and rights above the minimums in
statutes, awards, and national test cases.
In bargaining under FWA, there are some important improvements on
Workchoices, but also critical features of Workchoices are retained. It is a
mixed bag.

11 Jack Hutson, Penal Colony to Penal Powers, Revised Edition, 1983, AMFSU.

Regarding the content of agreements, “What should workers (and employers), through their unions, be allowed to bargain into their
agreements? Only wages and conditions of employment? Or, should they
include workers rights about organising and representation?

And, critically, can they have job security rights? The status of “job security” claims has been a feature of workers struggles and legal contest for several decades now.

The statutory and case law tightly controls the text of a “job security” right, as
expressed in a collective agreement.

For example, an agreement cannot
directly prevent an employer from using outside contractors, instead of direct
employed workers, but it might be able to express the terms upon which they
can be hired. Whether an employer can substitute casual or contract workers
for directly employed workers does not “pertain to” the employment
relationship.

But, at the moment, the right of a casual worker to convert to a
permanent after a period of employment is permissible.

The right to prevent outsourcing of jobs to overseas locations appears to be very limited.
The exclusion or inclusion of the workers’ demand for job security, even if
agreed to by the employer, is based on the “matters pertaining” principle. That
is, does the claim “pertain to” the employment relationship? If it is encroaching
on ‘management prerogative”, the employer-as-owner’s right to control, it will
probably be denied. Fundamentally, job security is held to be a matter only for
employers and their managers.

The Workchoices warriors, and most employers, say that the law should not
allow workers the right to bargain job security clauses into their agreements;
that , employers, corporate boards and executives can be trusted to look after
jobs. The critical decision about whether a worker can protect their livelihood
is not their business; this can indeed be left to the tender mercies of their employer.

One reason why Victorian Nurses are so passionately committed to their
patient ratios is that the “independent umpire”, Commissioner Blair, found in
2000 that it was the best mechanism to secure the best care for patients. Just
like their own common sense! Now, the Victorian government says
“…there ought to be flexibilities of rostering capacity for peaks and troughs of
demand”. How many nurses are needed at any time should be judged by senior nurses, he (Mr Djonoff) says.
But Commissioner Blair found in 2000 that senior nurses were often ignored
by high-level hospital managers, who were preoccupied with cost control.
Nursing federation secretary Lisa Fitzpatrick says that remains the case.

The second question is about bargaining processes and rights to take
industrial action, including of course the “right to strike”. The right to strike is
an international core labour standard set by the ILO.
12 Do nurse-patient ratios really matter? Michael Bachelard, The Age, November 20, 2011 –

Under the FWA, just like Workchoices, there is no general ‘right to industrial
action’, even to ensure that an employer does not breach an agreement.

The right to “protected” industrial action is restricted to bargaining, and there are
penal powers inside this “right” should the “PIA” become effective.

Unprotected industrial action is subject to a range of penal powers that can be
used against individual workers, unions and corporations. 13

Even PIA is not a simple right: the FWA’s imposes a set of at least 4 hurdles
that the workers and their unions must jump across before they can exercise
the right. They include, for example:
· The union must apply to the FWA for a ballot for a PIA to be authorised
by a majority of the affected members,;
· The employers can oppose this ballot and the content of the ballot
question,
· A majority of members must vote and a simple majority of those voting
in favour determines whether the PIA is finally granted;
· Give 72 hours advanced notice to the employer about the type and
timing of action that might be taken.

At the same time, the employer is allowed to distribute, without any application to do so, a copy of the agreement they want to the entire
workforce for a ballot that may or may not be conducted by an independent party.

The Qantas dispute and the Fair Work Act

The Qantas board are on a hell bent path for a radical restructuring of the
company that includes significant relocation of its activities and associated
jobs overseas. They are exercising enormous power because of their control
of capital and associated investment decisions.
In the Qantas dispute we have seen the exercise of some counterpower by 3 separate unions, in 3 separate but coinciding bargaining processes, chasing 3 separate new collective agreements with different starting dates and claims,
endorsed very strongly by the members and backed up with different forms of
modest, low level industrial action, designed to minimise inconvenience to the
public. More Qantas bargaining is planned by the Qantas Engineering Alliance of unions in 2012.

First, what about the workers?
In regards to the Qantas dispute there has been precious little commentary
about the workers who have engaged in this struggle for job security.
In the 3 separate bargaining processes the workers bargained for months and
then decided to pursue PIA, they watched Fair Work Australia (FWAust)
consider their application to vote, check over and approve (maybe modify) the
13 See, for example, FWA, ss 539, 545-546

forms of action that might be protected, and eventually give them permission
to vote; then they voted, under Australian Electoral Commission control;
weighed up the very strong result in favour, bargained some more in good
faith, and then took very moderate PIA.
During their PIA ballot application to FWA, their job security claims would
have been scrutinised by FWAust because under the FWA it is, arguably, not
“good faith bargaining” if you are pursuing claims that are not “permitted
matters” or that are unlawful. The workers’ claims must have passed muster
when they applied, so at that point they had jumped all of the control hurdles
placed in front of them by the current law, most of them hung over from
Workchoices. These workers know what it is to be heavily “regulated”.

They engaged in their modest industrial action, kept on bargaining, and stayed cool in the face of abuse and denigration from their CEO14. They
participated in their actions with determination, colour, calm and dignity. Their
PIA was counter power against the power being exercised by the Qantas
board that threatened their jobs through the relocation of Qantas’ operations.
They were standing up for themselves and each other, rather than have someone stand up for them.
Then they found themselves locked out and grounded with barely any notice.

They absorbed the consequent s. 431 order against them, considering the
penalties and punishments they would have faced from both the courts and
from Qantas. They submitted to Full Bench’s decision.
Now, removed from their fray, they watch a Full Bench arbitration exercise
that threatens their job security claims, manipulated by Qantas using
provisions of the FWA established by Howard in his 1996 laws, and carried
over by Gillard through 2007-8 in her negotiations with the ACTU and
employer organisations.

The Victorian nurses have opted to defy the orders against them and maintain
their industrial action. They have the overwhelming support of the Victorian
community, but are fully aware of the range of sanctions and penalties that
might be used against them.
What must workers be thinking? “Why must our job security be excluded from
bargaining?” “What do you mean, ‘job security does not pertain to the relationship with my employer?” “Whose law is it that says that ‘my job security is bosses’ business, but not mine’?” “What makes you think our job
security can be trusted with my boss?” “Can my boss do what Alan Joyce did?”
14 The Herald Sun, 19/4/11: http://www.heraldsun.com.au/businessold/qantas-chiefalan-
joyce-attacks-kamakazi-pilots-engineers-unions/story-e6frfh4f-1226041601194

The lockout and the shutdown of the airline provided focus for the Workchoices warriors’ key messages, all of which are directed at the
restoration of Workchoices.

Three of the key questions about workers’ rights, relative to their employers,
still remain. First, should workers, through their unions, be able to bargain job
security claims into agreements? Second, how much statutory power do employers and unions actually have relative to each other? And, third, workers and how much power should they have?

For example, Judith Sloan15, academic, Westfield board member, said this
about the job security claims that are in the Qantas bargaining mix:
“The act (ie FWA) says nothing about the types of issues that can be
demanded by unions as part of enterprise bargaining. This contrasts
with the prohibited-content clause in the previous act.”
This is simply not true. There are limitations imposed on what can be claimed
starting in s. 172. Some claims may not be “permitted” and there are several
points at which these may be tested, either by the employer or the FWAust.
The main test is that the claim “genuinely pertain to the relationship” between
worker and employer, or between the union involved and the employer.
The Full Bench decision shows how strongly supported the claims and the
PIA were and how modest and accommodating the PIA actually was16.
The dominant media message from Qantas, and carried by most media in support of Alan Joyce, was that he had no choice but to escalate TO BOTH LOCK OUT AND SHUTDOWN. But, once again this message is not true.

The FWA in fact provides many options for Qantas, for that matter all
employers, to control the bargaining process, some of which have already
been described.

Qantas complained about a union official talking of ‘slowly cooking’ the
company in discussions with members about industrial action tactics. The
FWAust decision show that Qantas itself engaged in ‘slow cooking’, by
repeating NO to the most important claims over months, permitted by the Act,
and left the unions’ members with 2 options: capitulation on their most
important claims or protected industrial action tactics.

Employers are entitled to take “employer response action”, eg a lock out, that
is protected also, provided it is in response to the PIA taken by the union
members. There are no notice requirements and the employer is not restricted
to forms of counter action that ‘match’ approximately the action taken by the
workers. Suspension or termination of PIA does not necessarily flow from this
15 The Fair Work Act has three big flaws, Judith Sloan, The Australian, November 02, 2011 12:00AM
16 Fair Work Australia, decision regarding s.424 application by the Minister, 31st October, 2011, option.17

Ultimately, this is the option that was taken with the extra heat of the
shut down of the fleet to trigger access to s. 324 (see below).
Qantas could have sought from FWAust to suspend or terminate the unions’
PIA because that action was causing significant economic harm to the
company and other workers it employs. This is subject to a truth test.
Obviously Qantas was not sure whether they could meet that test.18
Qantas could also have lobbied hard for the government to make a direct
Ministerial Declaration under s. 431 to terminate the PIA. Suspension is not
available. There is no specific requirement on the Minister regarding how
much the employer must prove its case. It is feasible for the Minister to just do
what the employer asks for. Tony Abbott’s shrill demands that the government
take this option tell us a lot about his commitment to anti worker powers.
Qantas could have itself sought a suspension or termination order from
FWAust if PIA threatened or actually endangered the population or caused
significant damage to the Australian economy or an important part of it.19
Qantas could have threatened to lock out, then describe the consequent
shutdown and its safety and economic cost implications. But that would have
warned everyone and subjected the intent to scrutiny.
Therefore, to get the economic harm they needed they used the lock out PLUS the shutdown of the entire fleet, thus throwing the onus on the
government for direct Ministerial suspension (not taken), or the action it actually took to apply to FWAust. The intention was that if the government did not act, it would be blamed for 70,000 plus stranded passengers.
FWAust very quickly worked out that the Qantas lock out – shut down decision
had caused the economic harm, not the unions’ PIA’s:
“It is unlikely that the protected industrial action taken by the three unions,
even taken together, is threatening to cause significant damage to the tourism
and the air transport industries. The response industrial action of which
Qantas has given notice, if taken, threatens to cause significant damage to
the tourism and air transport industries and indirectly to industry generally
because of the effect on customers of air passenger and cargo services. The
Qantas evidence was that the cost to it alone is $20 million per day.”20

In other words, the workers’ actions were effective, Qantas was losing the
fight, and they went for the penal powers to save themselves, just like so
many employers have done in previous decades.
Qantas’ right, available when necessary to all employers, to apply to FWA for
suspension or termination, and separately for a Ministerial Declaration to
terminate, were created specifically for employers by the Howard government

17 Fair Work Act, section 412 and 413
18 Fair Work Act, section 423
19 Fair Work Act, section 424
20 Fair Work Australia: Decision, 31 October 2011. Matter no. B2011/3816

in 1996. They were designed then to rob workers and their unions of effective
industrial action, even before Workchoices came along.
Reith and Abbott were deeply involved in this.

Robbed of their universal right to take industrial action, simply because it is
effective, workers are removed as agents in defining their destiny through
collective action, and are forced to observe others (on huge salaries relatively
speaking and who never have to take action to get anything) arguing about and deciding on their futures.

In effect, workers are being told that you can do so much industrial action in
circumstances that are regulated, but if that action starts to be effective, we
will take it away. You can have so much power, but absolutely not so much
that you can hurt your employer like your employer hurts you.

Snap strikes are illegal. Snap lock outs are legal.

Thus, the notion that the FWA is weighed against employers is a myth that
must be promoted to legitimize ‘reforms’ that restore Workchoices in some form.

This did not stop The Australian’s “Editor-at-Large” Paul Kelly who wrote
straight after the lock out21 and shutdown:
“The Fair Work Act has changed the industrial relations culture and bargaining
in three critical respects. First, it shifts statutory power from employers to
unions. Non-union enterprise agreements are virtually impossible. Individual
contracts are banned. Union-run enterprise agreements are the name of the game.”
This is not true. All agreements under the FWA are ‘non-union’ agreements.
The union may start bargaining and be the prime movers throughout, but once
bargaining finishes (and even before that), the employer provides the
agreement to all employees for ballot and controls the decisions on how the
vote will be handled. The agreement is voted on by union and non union
workers and is considered “made” when a simple majority votes for it. It exists
between the employer and the relevant workers. Either the employer or union
lodges the agreement to FWA for FWA approval.
However, the union must
then apply to FWA for “coverage” under the agreement. The agreement is not
between an employer and the union.
Thus, agreements are being made and approved with a minority of or no union reps at the table.

Individual agreements (Workchoices AWA’s) are being phased out, new ones
are not available.

However, employers can still employ workers on individual
common law contracts provided they meet the minimum requirements of the Act.
21 Blame game misses need for IR reform, BY:PAUL KELLY, The Australian , November 02,
2011

Individual workers cannot be forced into pay and conditions less than the
award or National Employment Standards.

Conclusion: let’s win some “unfinished business”
One hypocrisy of the Workchoices warriors is their claim to be champions of
deregulation.

However, in order to implement the deregulation they favour -
the employer’s right to shift to a precarious workforce, or to relocate to a low
wage haven overseas – they advocate repressive regulation that prevents
workers from pursuing job security clauses in their agreements, and from
taking industrial action that works.

They support the right of the employer to add more workers to the 40% now in
precarious work.

In short, repressive regulation that shackles the workforce is
good regulation, because it deregulates the workforce.

The golden rule of corporate Australia is that decisions like Qantas’ to
manipulate income, investment and profit from domestic operations to set up
overseas operations on a “cheap airlines” model is nobody’s business except
the board.22 These decisions should not be analysed or mediated by the
workers affected by them, especially through bargaining, nor the FWA, nor the
government, or the community generally. They are sacred ground.

The Qantas dispute was also an opportunity for the Liberal Party, in playing its
role on behalf of employers, to eat into the Labor Government’s control over
industrial relations policy. They sought to establish new proof that there is no
single area of policy that the government is actually in control of. How much
Alan Joyce, Leigh Clifford and some of the senior execs in Qantas engaged in
this is not definitely known. But, we know that something fishy was going on between Shadow Treasurer, Joe Hockey, and Qantas well before the lock out was announced. The Liberals are well versed in how to put together a conspiracy in industrial relations.

The YR@W campaign against Workchoices was a great victory “politically”. It made history. But industrially the FWA is a significant, but relatively modest reform. The workers and their supporters who fought that campaign deserved
a lot more.

The question now is, can we mobilise between now and through the period of
the review next year to win the improvements we need.

Can workers and union rights be pushed to the front again?

The strategic choice for the union movement, in the face of the Workchoices push, is to defend what has been achieved, or to push strongly to complete at
least some of the “unfinished business”; to build a lobbying and internet
activist effort in support or, to genuinely mobilise a YR@W style campaign to
attack Abbott and make the Labor government more Labour.

The Act must be amended to reduce the considerable powers still available to
employers to dodge genuine bargaining, and especially to take on the
UNFINISHED BUSINESS:

· Get rid of the ABCC altogether.
· The right to bargain on job security issues without constraint. Job security is workers business.
· There must be industrial action rights to implement agreements after
they have been negotiated to counter the employer’s ability to breach
agreements.
· The lock out powers for employers must be removed from the Act or at
worst constrained, perhaps limited by a tough requirement to apply in
advance (just like unions must on behalf of workers for PIA) and to
proportionality against the action being taken by workers.
· To include industry wide bargaining rights;
· To recognise the right to political and social strikes and forms of action.

If the new penal powers – termination and suspensions of industrial action
with consequent statutory fines and common law damages against workers
and their unions – are retained, then we must start to imagine and develop an
industrial strategy that leads to defiance that makes them unworkable.
The Victorian nurses are on the right track. When will there be more supporters and followers?

22 Roy Green, http://theconversation.edu.au/planes-set-to-fly-again-but-what-now-forqantas-
4089?utm_source=The+Conversation+Daily+updates&utm_campaign=cdc0c2b8be-
DailyNewsletter&utm_medium=email

Don Sutherland is a National AMWU Industrial Officer

The House of Representatives narrowly passed changes on February 16 to the undemocratic building industry laws that target building workers.

The Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, which will replace the Building Industry Improvement Act, was narrowly adopted by a margin of one vote. The bill is now before the Senate.

The government, Greens MP Adam Bandt and independent MP Bob Katter moved several amendments to the bill in the House.

The government’s amendments, which were supported by Bandt, Katter and independent MP Andrew Wilkie, prevent the Fair Work Building Industry Inspectorate from pursuing action against building unions in matters that have already been resolved with employers.

However, the fact that coercive powers remain in the bill ensures that construction workers and their unions are still subject to special powers that criminalise union activities.

Read more

http://www.greenleft.org.au/node/50232