|Issue No 105||03 August 2001|
Employment Advocate Jonathon Hamberger argues the case for his organisation's survival and reveals his secret union past.
What do you stand for as Employment Advocate?
The key reason why the OEA exists is that there are a lot of people out there who the traditional industrial relations system has largely disenfranchised. The system traditionally is based around registered organisations and large employers, employer associations and tribunals. But most workers aren't in unions - rightly or wrongly that is the reality - and a lot of people are in small businesses which may or may not belong to registered organisations, and who traditionally haven't had a lot of opportunities to really do much within the system.
When the Workplace Relations Act came in at the end of 1996, it gave some opportunities and obligations on individual workers - including non-union workers - and also in relation to small business and individual businesses generally. Now, I think the Government recognised that it was one thing to give these traditionally disenfranchised groups rights and responsibilities, but the realities of the workplace mean that without someone to help them through their legal rights and responsibilities - to assist them - those rights and responsibilities might just be a bit of paper.
If you take for example AWAs, the idea is that individual workers should be able to negotiate directly with an individual employer - but there is also recognition by Parliament when they passed their legislation, that there are in fact, imbalances in power relationships, and that to ensure that employees were not exploited in that negotiation of individual agreements, that there be a government body charged with making sure that their rights are protected. And in relation to freedom of association, the same really, that individual workers are given rights about whether they do or don't join a union. That is great to have it on paper - a right, but how do you actually enforce that right? It is pretty hard for individual workers to take legal action in the Federal Court or any other court, and so there is an organization charged with assisting individual workers in that situation. And that covers, I might say, both the right not to be in a union, and indeed also the right to be in a union.
Can you understand the suspicions of some in the trade union movement of an organisation headed by somebody who came out of Peter Reith's office?
I worked for Peter Reith for a year. I have actually been in industrial relations for getting on to 20 years.
But can you understand the perception that you are anti-union?
Of course I can. I actually do have quite strong personal views, which may or may not coincide with Peter Reith. I used to be, I might say, a union delegate. I used to actually go and do the hard job of actually trying to persuade people to join a union. I was a union member for most of my working life.
Who were you a delegate with?
I was actually a delegate with the ACOA. I was a member when I was in the Public Service.
What was that experience like?
It gave me some insights into why people do and don't join unions.
Were you successful?
It was a hard ask. Because people had very personal reasons why they would or wouldn't join. In my opinion, except for a fairly small minority joining a union is not an ideological or philosophical issue. For most workers it is a pretty pragmatic issue. People join unions because they think it is in their interest to join - or they don't join because they don't think it is in their interest to join most of the time. Obviously some people do join and don't join because they are given no choice about it, but in this day and age most workers, though not all, do have an effective choice about whether to join or not, which, as I said, I think is a good thing.
In the Federal Public Service, certainly in the white collar areas, it always has been a choice. There has never been compulsory unionism as far as I am aware in the Commonwealth Public Service, certainly not in the white collar areas. And yet they have had relatively high levels of union membership, so obviously a lot of people have chosen to join. But some people wouldn't join because when they had actually sought assistance from the union on a particular grievance it hadn't been forthcoming. Now, that may or may not have been justified from the union's point of view. You can always go back and look at the individual circumstances of the case. But often that is when people would say, right, I'm fed up, I don't want to be in there.
And I still think that for unions the key issue - and I have read a lot of stuff about the Organising Model and all the rest of it - that is all interesting - but it is still true to say that the key issue about getting people to join unions is to provide a good level of service at the individual level. And yes, people may join for things like collective bargaining and negotiation of pay and conditions, but for a lot of people, what they are looking for from their union is someone who they can seek assistance from when they have had a problem, usually with their employer, whether it is some kind of grievance, or dismissal, or a workers compensation problem.
In fact, the trouble is that a lot of people feel that when it comes to the crunch, they don't get any help. And those are the people that were hardest to persuade to join the union. They wouldn't have an ideological problem with it, but they had a personal experience which didn't make it favourable for them to fork out whatever it was - the five dollars a week. And I think that it is as simple as that at the end of the day.
Our statistics, plus anecdotal evidence, I might add, suggests that there are a large number of workers being intimidated from joining unions. You would have seen our survey last week: If free to choose, would you be a member? Do you see this as a significant problem?
Can I say that I don't think that is what your statistics show. With all due respect to your survey, that is nothing new. It has been clear for many years that if you do a survey of workers and you ask would you like to be in a union or something along those lines, substantially more people will say they would like to be in a union than actually are. I guess the question then becomes: Why haven't they joined?
Now, in my view, in some cases there is no doubt that they feel intimidated by their employer from joining. I do not take the view that that doesn't happen. We know that it happens and we have dealt at the OEA with over 150 cases where employees have complained either that they have been prevented from joining a union by their employer or that they have suffered some consequence for being a member of a union.
So there is no doubt that it is a problem. I have never said that there is no issue there. However, my personal view is that probably a much bigger issue is that in many workplaces there is no effective union presence and so why people aren't free to join isn't so much that their employer won't let them join - though as I said, that does happen. There are certain situations like that. But that there is nowhere to join.
The unions have virtually no presence in small business nowadays - small to medium sized business. And that is where over half the workforce is. People there who may well have joined a union - they wouldn't even know where to start to join a union. I actually think that that is a bigger issue in terms of people not joining unions.
I don't pretend that there isn't a problem in some workplaces with employers intimidating people from joining unions. We have actually dealt with a number of matters like that.
What do you do in those cases?
We have got a very recent example of this from just the other day at a large manufacturing company, a number of employees who were long term casuals who I think had been engaged through a labour hire company, had indicated that they intended to join a union and got told basically we don't have union members here, and essentially got dismissed. They complained to us and we took the matter up with the employer and we were able to get compensation for them.
But would you agree that in the majority of cases, a worker who is too intimidated to join a union is going to be too intimidated to file a complaint with the Employment Advocate?
I don't know about the majority of cases. We do have quite a lot of people who do it. It is always true in the area of industrial relations that when you are talking about issues of the workplace, that some people will feel nervous about going to seek assistance from a third party, whether it be a union, whether it be the Department of Industrial Relations, whether it be the OEA. Nevertheless a lot of people do do it. It is probably much more common to do it - I suppose unfortunately but realistically - in this kind of situation when someone is no longer employed at the place. The same with award breaches. People are much more likely to take it up when they have left their employment.
One of the things we have actually been quite active in and where we have taken legal action on more than one occasion, is where people have been victimised for seeking the assistance of a body such as the OEA or the Department of Industrial Relations. You have a legal right to be protected against victimisation for seeking that assistance under Part 10A of the Workplace Relations Act. We have actually taken legal action in a couple of matters, actually on that point and have successfully got compensation for employees concerned.
Going back a step. If your proposition that a lot of people in small to medium businesses would like to be in a union if they could, but the union isn't there, is there some public policy role for government to assist them in getting unionised - in finding the correct union for them? Should there be a role if there is a desire there from an organisation like yourselves to actually get people in touch with unions?
We certainly do promote as far as we can the right for people to join and we certainly tell small businesses and employers in small businesses - and we have even had advertising campaigns to the effect that you have the right to join. We haven't actually gone out recruiting for unions in the sense of actually saying here is the phone number you ring and this is the person you contact because I think that is a job for the unions to do. But certainly we have actually actively promoted .....
But a facilitative role? There must be some sort of public policy in assisting people make exercise their choice to join a union...
If you go to our website I am sure we have the ACTU and probably the Labor Council's phone number on it. I don't have a problem with it. If you want to give us your contact details we'll put them on our website. I don't have a problem with it in principle. We are not going to go out there actively recruiting people. It is not our job to persuade people to join or not join unions.
But we certainly will go out there and educate people about their rights. That is really our role. To go out there and tell people you have the right. Whatever your employer says, don't believe it: you have the right to choose to be in a union or not to be in a union.
We spent quite a bit of money on an advertising campaign amongst a number of other initiatives, to actually make that point and I must say we do get a lot of calls about this issue and as I said we are quite active in promoting the right to join unions, as well as the right not to join.
On the building industry Royal Commission, are you concerned that your office has been used as a political pawn in this whole process?
The Minister to whom I report, asked for a report on broadly speaking the state of industrial relations in the building industry and whether we were aware of unacceptable practices. It would have been quite inappropriate of us not to have given him such a report. I thought that was a perfectly reasonable request.
Critics say that it was merely a collection of media reports. It was just a summary of what had been in the papers, which were quite sensationalised stories over the previous few months. Did you do extra research beyond going through the media clippings?
Certainly, some of it was based on media reports, but most of it wasn't. We deal not only with issues of freedom of association, we also deal with issues of coercion in enterprise agreement making; issues about right of entry; issues about strike pay - and in those areas the majority of complaints by far come from the building industry.
As well as those issues, we have compliance officers around the country, and we come into contact with a lot of issues of inappropriate behaviour in the building and construction industry in particular. Most of what was in that report was based on the information we had quite independently obtained.
Some of the issues are outside our jurisdiction and we don't formally investigate matters that are outside our jurisdiction obviously, however, we acquire a lot of information almost incidentally to doing stuff that is within our jurisdiction, and this is particularly true in the building and construction industry.
So, most of what was in that report was actually based on our own independent sources of information. Most of it wasn't based on the media. But what happened was of course, as these things always happen is the media picked up on the stuff that was the most sensational kind of matters we raised in our report, and a lot of that stuff was actually in the media so there was a lot of circularity about it. The media reporting on essentially the media, but no, the guts of our report wasn't based on media reports.
Labor has vowed to disband your office if they win power. (a) Do you think you could work with a Labor Government if they kept it going and (b) What do you think would be lost if the Employment Advocate was disbanded?
Most of my staff are career public servants. I know some people like to portray us as some sort of band of ideological zealots, out to achieve some sort of political gain, but in fact, most people are career public servants, and we have quite a lot of people from a union background. I think we have significantly more people from a union background than we have from employers' background.
I have worked as a public servant for governments of both persuasions, so I don't think there is any doubt that if there was a Labor Government and they wanted us to continue to exist in some form or other, or in fact whether that was the result - the parliamentary game if you like - then I am sure we could work with the Government. I certainly could and I am sure all of my staff could.
What would be lost if we didn't exist? I guess that goes back to the point of why we were there in the first place.
Let me take an issue of the freedom of association. It is interesting that the freedom of association provisions in the Workplace Relations Act have been used very extensively by unions, which is fine. However, the FOA provisions, as well as giving rights to unions and their members, also give rights to people who aren't in unions and it is interesting that as far as I am aware the only use of the freedom of association provisions by people other than unions has in fact been by the OEA.
Going beyond that, there has been no suggestion that a Labor Government would repeal the provisions that give workers the right to choose whether or not to join a union as far as I am aware. That has not been an issue. No one has even talked about it in fact and I dare say they wouldn't. It is one thing to give people a right in an Act of Parliament - it is just a piece of paper at the end of the day in some respects - but if you don't have any means of enforcing that right then it is a dead letter.
If you genuinely want to give workers the right to choose whether to be in a union - you can argue about whether or not that is a good thing or a bad thing - but if you accept the principle that people should actually be able to choose, you need something like the OEA in my view to make that a real right, rather than just a paper right.
Now, it doesn't have to be the OEA, you could have somebody else do it, but you need to have somebody like it. Until the OEA was set up there was no such body at the Commonwealth level. With all due respect to the Federal Department of Employment, Workplace Relations and Small Business, their Office of Workplace Services, which I suppose in theory could perform a role like that, has always focussed heavily on issues of award compliance, which is a big area. There is a lot of work to be done and they have enough time handling that in terms of resources - it is a big enough job.
That in a nutshell is what would be lost.
Again, if you were to let us say, retain AWAs, because I know Beazley says he will abolish AWAs, but if AWAs - who knows what will happen in Parliament if Labor get it - won't necessarily control the Senate - who knows what will happen. But let us say AWAs still exist, of course in theory you could give a greater role to the Industrial Relations Commission in relation to AWAs, that is certainly one point of view, but at the end of the day if you want to make sure that workers under AWAs have rights that are protected, you probably need a body something like the OEA to assist there, even if there is a bigger role for the Commission.
Say, for example, somebody to deal with issues of alleged duress, somebody to investigate breaches or alleged breaches of AWAs and so on, which is a role we perform.
So I think it is the small business, the individual, predominantly non-unionised worker - but remember that is the majority of workers - who I think would lose if the OEA didn't exist.
I just want to add that, OK, we have taken quite a lot of matters to court, but that is the tip of the iceberg of what we deal with on a day to day basis. We are dealing with individual workplace matters everyday, around the country, where someone's rights are potentially being abused. Sometimes it is a small business. Probably at least as commonly if not more commonly, it is an employee. If you took us away you need someone to fulfil that role.
One final question. It is a question we asked in our survey and I would be interested in your response. Do you agree with the proposition that Australia would be better off without trade unions?
No. I think Australia would be worse off without trade unions, that is my personal view.
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