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Leg Before Picket
Prime Minister Howard's control of the Senate means for Industrial Relations the 'gloves are off'. His election statement was sparse, so details of the new Workplace laws may not be clear until after the new Senate in July 2005.
What is promised to be a radically new legislative framework for Australia's workplaces is based on press statements and on Liberal WR Bills defeated by the Senate. What is known as we go into the New Year is that at least the Workplace Relations Minister Andrews will re-introduce these IR Bills (www.dewrsb.gov.au/ministersAndMediaCentre/andrews/default.asp)
The impact of these Bills is disguised by political Orwellian 'spin.' For many IR practioners, the Minister's political spin distorts the industrial relations reality by inverting the outcomes. Slogans such as "more jobs, better pay" through "flexibility and productivity" will be endlessly repeated. There is little evidence as shown by Keith Hancock and Joe Isaac Australian
PM Howard is a political ideologue on industrial relations, assertively pro-employer. His new 'no holds barred' changes will shift more legal power to already dominant employers. This will further ensure an IR system with little balance for employees. The current workplace regime is seen as unfair by millions of working families, but they have not experienced the worst of it.
The Howard government is committed to full deregulation of the labour market, flexible workplaces; but downward flexibility in wages and conditions. The bipartisan Senate Poverty Inquiry found that 21 percent of households - 3.6 million Australians - live on less than $400 (240 euro) a week. The main source of poverty is joblessness, but also the phenomenon of the working poor. Many poor households are in work but receive very low pay. "Driving this change has been a casualisation of the workforce in the last two decades and a more recent weakening of the industrial relations systems". Working lives of casuals and those in precarious employment described in Watson, Buchanan, Campbell, Briggs (2003) Fragmented Futures New Challenges in Working Life (ACIRRT, Federation Press, Sydney) will worsen with further weakening of employee rights and union power.
What of the employers? Key powerful corporate interests, political employer associations and New Right commentators are shaping Howard's political agenda. Some main players whose policies can be followed on their websites are the Business Council of Australia, BCA; the Australian Chamber of Commerce and Industry, ACCI; the AIG, Australian Industry Group; the MBA, Master Builders Association; the NFF, the National Farmers Federation and the New Right H R Nichols Society, whose leading business ideologues sent a letter (Australian Financial Review 20/11/2004) to Howard demanding their far right agenda, based on UK 19th century master and servant doctrines under the guise of 'freedom to contract.'
Many other employers will not be interested in the politics but only wanting to get on with business.
An icon issue for PM Howard is the removal of unfair dismissal rights of workers in small business with less than 20 employees. This for good reason went down in the Senate on many occasions. A point of obsession, Howard repeats doctrines to give the impression he is backing small business and that (unproven) "lower job growth is all the fault of unfair dismissal legislation". The outcome will be millions workers in small business could be sacked unfairly for no reason or for the worst reasons. This is a green light for those employers who mistreat their workforce. Unfortunately, there are sadists as bosses ruling with workplace fear. Small business managers can treat staff badly and if staff speak up they can be sacked with no warning. This is a recipe for unsafe workplaces, especially the bullying of women. An unfair dismissal case at least gives the employee a means of airing their grievance and if the case is strong to be reinstated or compensated. It is reprehensible that this individual right to be treated fairly is to be taken away. Dismissal laws only prohibit unfair behavior and are not a major burden on small business. Less than 0.3 percent of small businesses have a federal unfair dismissal claim in an average year. Less than 1 percent of small businesses gave unfair dismissal laws as a reason for not hiring staff. (See Australian Financial Review, 20/11/2004). SA has had unfair dismissal assisting employees for 30 years.
Minister Andrew's next Bill denies small business workers redundancy pay. Up to 100,000 employees in small businesses are retrenched every year to face an average of five months unemployment. Employees working in small business for up to twenty years may - if they are unlucky enough to be laid off - walk away with nothing, unless there is redundancy pay, a very small minimum compensation as an Industrial Commission minimum.
Another iconic issue will be more pressure on workers and management to use AWA's. After eight years of vigorous promotion, AWAs cover less than 3 percent of the workforce. Individual bargaining was dominant 100 years ago. Under the slogan of 'freedom of contract' employers refused collective union bargaining but enforced unilaterally an individual contract: sign up or else you won't get the job. AWAs are used to de-unionise workplaces. The University sector is one early target of compulsory AWAs, despite management and unions rejecting them.
On the basis of past attempts, the Government's fundamental thrust is to make much legitimate union conduct unlawful. Legitimate union organising and bargaining with industrial action as a last resort for the occupational, economic and social interests of members will be increasingly under threat from a more severe penal system. The PM makes political noise about the undesirability of intervention by third parties into the workplace citing the necessity to cut back unions and the Industrial Relations umpire, but the reality is that the third party intervening unnecessarily will be his Government.
The Government's "Better Bargaining Bill", (in spin language) that strengthened only employer rights to stop strikes was previously halted by the Senate but can now become law. (www.workplace.gov.au/WP/Content/ Files/WP/WR/Legislation/wra (bb) bill20032rs.pdf: www.aph.gov.au/Senate/committee/eet_ctte/reports/)
ACTU President, Sharan Burrow said (www.actu.asn.au/public/news 6 November 2003):
"This Bill effectively seeks to ban the right to strike. There is no evidence to justify the Bill. The level of strikes in Australia is at record lows and long-term productivity growth is at record highs. The Howard Government is again taking the side of employers against workers. The changes would tip the balance in workplaces even further in favour of employers. The basic rights of employees need to be strengthened, not weakened. The government's changes would persecute workers for trying to bargain or to take industrial action over legitimate claims for better wages or workplace conditions."
The ILO has cited Australia's restriction against collective bargaining at the industry level or multi-employer level, against pattern bargaining, against industry strikes, as being in breach of the principles of freedom of association, so further restrictions are not justified.
Will Australia's still unique Industrial Relations Commission system continue to exist? This was intensely discussed at the recent successful National Industrial Relations Convention celebrating the 100-year history of Australia's industrial relations system. For those interested in serious research governing public policy it is worth reading Isaac J and Macintyre S (2004) The New Province for Law and Order 100Years of Australian Industrial Conciliation and Arbitration Cambridge University Press, Melbourne. What is to come for the AIRC is not yet clear. In one ideological twist in the policy, many of its functions may be privatised. Minister Andrews' election promise was $2m to improve small business's access to mediation services. The H R Nichols Society calls for the abolition of the AIRC and a return to the ancient common law and Supreme Courts.
Minister Andrews promises to protect independent contractors: that "the concept of freedom to contract is protected, promoted and enhanced". The details are not clear. But one legitimate fear is that this is freedom for the employer to contract on whatever terms the employer dictates. It is based on master and servant doctrines. In today's difficult labour market, far too many employers use legal contracting devices to force workers to sign documents saying that they are not employees and are therefore not entitled to basic minimum entitlements. Workers have to sign to become "businesses" and then contract their labour. Industrial courts have looked behind these contract devices and revealed that these 'contracting businesses' are really employees, who should be covered by workers compensation. The Government does not want industrial courts deciding that there are rights for dependent contractors.
Union right of entry may be further frustrated. When employers failed in a right of entry case, they lobbied the Minister, so he had a Bill to exclude the operation of State right of entry laws where Federal right of entry laws also apply.
The militant building unions are already singled out. After the $60 million Cole Royal Commission, the Bill was defeated by the Senate and now is be re-introduced. Australians can now expect to see an ideologically biased Building Industry 'police force' designed to undermine building workers with a world of industrial spies on building sites, delegates, taping and harassing union officials, and prosecuting. Pattern and industry bargaining strikes would become unlawful, undermining collective bargaining power. Union officials could lose their livelihoods for five years for the most trivial breaches.
Compulsory pre-strike ballots are likely. Many unions now exercise the right to have a pre-strike ballot. But if the government's provisions are too restrictive, unpractical and delaying for union campaign momentum, they in practice may frustrate the right to strike. If any balloting provision is breached, however minor, then the strike becomes 'unprotected.'
The Government promises to strengthen secondary boycott laws that already make secondary boycotts unlawful; so how this could be more restrictive is difficult to say. The common law tort weapon for an employer to get an interlocutory injunction to stop strikes or else the union faces severe penalties will be more widely available.
Some of these policies breach Australia's international labour law obligations and ILO minimum standards. Powerful business interests call for no application of ILO Conventions.
HEALTH AND SAFETY IN DANGER
Howard in his policy plans to abolish the National Occupational Health and Safety Commission. This shows a callous disregard for the welfare of the working families. Each year there are 4,500 workplace-related deaths. The Government is planning to abolish the tripartite body that sets the standards for the application of workplace health and safety guidelines. This is to remove the positive influence of unions; whereas the ACTU
is strong on OHS e.g. campaigns against James Hardie for compensation for asbestos victims.
The PM now has the power. It is all politics. Some form of these laws (or some surprises) will be passed in 2005, despite union, political and community opposition. I am worried that the great Australian notion of a fair go for all at work will be at risk. We shall see.
Chris White. Flinders University. These are his personal views not those of the University.
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