Union rights: make Australian Labor fight!

Submitted by AWL on 29 August, 2005 - 2:19

Draft article for Workers' Liberty (Australia) no.38, by Bob Carnegie and Martin Thomas

This year, John Howard plans to bring in anti-union legislation more drastic than former British Prime Minister Margaret Thatcher ever attempted in one instalment, and arguably more drastic than the sum total of the whole long series of laws introduced by Thatcher's government through the 1980s.

It is an attempt to change the balance of class forces radically and suddenly - to set in train a process which will transfer most workers to individual non-union contracts (Australian Workplace Agreements, AWAs) in place of union-negotiated, publicly-registered "awards". If successful, it will yank the Australian working class out of conditions still in the same league as the working classes of continental northern Europe, and hurl them towards conditions more like those of workers in the USA.

A day of action against the legislation called by the ACTU on 30 June was well supported, and another is planned for 15 November. But by 15 November the major legislation will already be before parliament, and other legislation and administrative measures are already being implemented.

The federal government is refusing to transfer $5 billion of federally collected taxes to the states unless they offer AWAs to workers in TAFE. The State governments initially refused to offer the AWAs, though at the start of September Western Australia and Queensland backed down. Similarly, universities have been told that they will not get federal funding unless they offer their employees AWAs.

Howard is putting through special legislation for the building industry which is to be retrospective - to take effect from 9 March 2005, long before being passed by Parliament. This legislation bans "pattern bargaining", requires a 21 day "cooling-off period" after two weeks' legal strike action, imposes heavy fines for both union officials and individual workers for unlawful strike action, and creates a special body to "police" the industry, the ACCB, before which building workers will have no right to remain silent when questioned.

The campaign and Labor

Former New South Wales attorney-general Jeff Shaw is planning a court challenge to the constitutionality of Howard's general legislation with the backing of the state governments, which are all Labor. He can succeed - if union campaigning is combative enough that the judges are inclined to think that the legislation may be unworkable anyway.

In Queensland, Peter Beattie's state Labor government has legislated to protect conditions (superannuation, long-service leave, overtime rates, etc.) for all workers currently covered by state awards. The conservatives say that this state legislation will be overridden by Howard's federal laws, but, again, what the judges say about that will depend on the strength of the campaign.

One Labor city council, Newcastle, decided on 23 August 2005 to ban contractors who use AWAs.

At the same time the federal government is also making it a condition of funding to the states for schools that the schools buy flagpoles, fly the Australian flag, and grade students' reports "competitively" (top of the class, bottom of the class, etc., rather than in terms of achievement). One state government, Victoria, has refused to comply with the demand for competitive ranking of students (The Age, 25 August).

Union activists should seize on these legal and political contradictions, and act to make Labor fight! Despite the Australian Labor Party's huge turn to the right over the last twenty years and more, Labor is still structurally dependent on the unions, and can still be pushed along by union pressure - if the unions choose to exert it.

The unions should demand that all state governments should pass laws similar to the Queensland legislation safeguarding workers' rights. That they should refuse to cooperate with the federal government over AWAs and anti-union legislation in the same way as Victoria is refusing to cooperate over school reports, and states are refusing to offer AWAs in TAFE.

If the government cuts funding to the states in retaliation, they should respond by stopping the payment of PAYE contributions from state employees to the federal treasury. They should take the same stand as Newcastle City Council about refusing to deal with contractors who use AWAs.

Federal Labor leader Kim Beazley has refused to commit the next federal Labor government to reversing the legislation. He has even dissociated from official Labor policy to scrap AWAs, claiming instead, and implausibly, that he will legislate sufficient protections for workers to make them irrelevant. But ACTU secretary Greg Combet has declared himself content with Labor's general stance. The unions should insist that Labor commits itself to full repeal.

Campaigning of that sort, starting now, is the best way to stop Howard's legislation - by convincing wavering conservatives that it will cause more trouble than it is worth - and of preparing for mass industrial action in support of workers or unions penalised under the new laws and measures.

Well-organised groups of workers in large companies should demand their employers refuse to use AWAs, and refuse to deal with contractors which use AWAs or which do not allow union organisers free access to their sites.

Individual contracts

Industry minister Ian Macfarlane said on 22 August: "We've got to make sure industrial relations reform continues so that we have the labour prices of New Zealand". In New Zealand, unions' powers were crushed by legislation in 1991 and - even after the repeal of that legislation by a Labour government in 1999 - wages there are, on average, 32% lower than Australia's.

For over a hundred years, worker-boss negotiations in Australia have been much more publicly-regulated than in most other countries. Industrial deals have been "awards", publicly-registered legal agreements negotiated by unions with employers and covering whole industries or sectors. The federal and state Industrial Relations Commissions have large powers to arbitrate.

Despite all its problems, this system creates large possibilities for better-organised workers to push forward advances in wages and conditions which flow on to worse-organised or more weakly-placed workers.

Howard plans to shift the axis of the whole system towards individual agreements between individual workers and employers - so-called Australian Workplace Agreements (AWAs) - and thus drastically reduce the ability of workers' collective trade-union action to determine wages and conditions.

The centrepiece legislation has not yet been published - or even drafted in detail - but several laws and administrative measures are already been pushed through. In sum:

1. Individual contracts which scrap most "award" conditions will be legal. The only legal limitation on them will be that they pay at least the minimum wage (currently $12.75 an hour) and include eight days' sick leave per year, four weeks' annual leave, unpaid parental leave, and "award" working hours. Employers will be entitled, and encouraged, to "buy out" all other conditions individual-by-individual.

2. Strikes will be illegal without the workers first being balloted by the Electoral Commission.

3. The right of union organisers to enter workplaces - one of the most important legal strong points that Australian unions still have - will be drastically curtailed.

4. "Pattern bargaining" - in which a union wins the effect of an industry or sector-wide agreement without the formality by winning deals with all the employers based on a common "pattern" - will be illegal.

5. Employees of the states will be pushed towards AWAs by the federal government making the transfer of tax revenue to the states conditional on that push.

6. The powers of the Australian Industrial Relations Commission will be drastically cut. Its power to determine the minimum wage will be transferred to a new commission more controlled by the government. The federal government cannot directly abolish or disempower the state Industrial Relations Commissions, but is explicit that longer-term it wishes to see them fade away.

7. All unfair dismissal protection will be removed for workers employed in companies with less than 100 employees. (That is, the majority; and it will not be too hard for bigger companies, if they wish it, to divide up their operations so that all their workers appear to be in a unit of less than 100 employees). Workers can still take court action against "unlawful" dismissal, for example being sacked on racial grounds, if they can afford to hire a lawyer for it and wait maybe 12 to 18 months for the case to come to court. But most workers unfairly dismissed - and, certainly, those sacked for striking - will have no legal recourse.

How Labor paved the way

Even this legislation will not be able to shift the Australian working class in one blow to a system where each worker hopes for no more than the best deal he or she can haggle for in the market as an individual facing the collective power of a corporate employer. Even the Howard government expects no more than 10% of workers to be on AWAs by the end of 2007.

And Howard could not even get to first base if it were not for a whole series of previous measures. The 1983-96 Labor government instituted Enterprise Bargaining Agreements (EBAs) as an "add-on" to awards, legislating so that EBAs have become the main way for organised workers to get pay rises, and awards are mostly only back-up. Thus it will not be too hard in many sectors for bosses to offer AWAs at slightly more than the award wage-rate, but drastically worse conditions, and pressurise or intimidate sufficient workers into accepting the AWAs.

AWAs themselves were introduced by the Howard government in 1996, but so far have been limited by a requirement that they offer "no disadvantage" compared with award conditions, and have not been taken up widely.

The fibre of the union movement has been cumulatively weakened over the years. In 1956, 85% of Queensland's workforce was unionised. In 1976, 56% of workers all across Australia were in unions. In 1986, unions still organised 46% of Australia's workforce. The 1983-96 Labor government's policies of privatisation and marketisation pushed union density down to 31% in 1996. It fell to 23% at its lowest, before recovering slightly in the last couple of years to 25%.

Strike rates for 2001-2003 were 90% down on the average for 1973-83.

But the last big labour dispute - the attempt by port employers to lock out the wharfies in 1998, and replace them by non-union workers - generated large-scale solidarity action on a level not seen in Europe recently except in the French strikes of 1995 and 2003. In the end the unionised labour force got its jobs back, but on worse conditions and with large job cuts. Our assessment that this was a defeat for the workers (though a much smaller defeat than would have been without the solidarity action) was a minority view on the Australian left at the time. The idea that "the MUA scored a major victory" was majority opinion on the left, and is still argued today (Red Alert, August 2005).

Howard's dash to bash

The Australian labour movement has not suffered a crushing nationwide defeat of the type that the British unions suffered with the 1984-5 miners' strike, or the US labour movement with the 1981 air traffic controllers' dispute. The building industry has a level of worker assertiveness and combativity unknown in Europe.

Groups like the Business Council of Australia have long urged drastic legal measures to shift the class balance of forces. And on 1 July 2005 they got their chance. For the first time since John Howard became prime minister in 1996, he gained control of the Senate, the upper house of the federal Parliament.

In opinion polls, 60% of the population opposes the planned anti-union legislation - which comes together with many other unpopular or downright cranky moves, including a sell-off of the publicly-owned telecoms company Telstra, the imposition of "voluntary" student unionism (i.e. making the running of university student unions and their services depend on voluntary contributions from students, a step which Margaret Thatcher considered but backed off from). But a prime minister who won a fourth term of office in October 2004 can afford to do some unpopular or even crazy things. Voluntary student unionism has no strict economic rationale in the way that privatisation or anti-union laws have, but is a punitive measure to stop university student unions training and turning out left-minded activists.

With unemployment currently low and wages rising at a fair rate, Howard must think that - despite Macfarlane's unfortunately candid outburst - he can get through the anti-union laws while assuring a lot of workers than they will only bring more "flexibility" and "competitiveness", not more exploitation.

Howard’s problems

Yet Howard faces divisions and problems in his own camp, which could be exacerbated to the point of paralysis by a trade-union campaign combative enough to convince wavering conservatives that the anti-union legislation will be unworkable and backfire in their faces.

Australia's federal constitution creates problems for him. The states have their own industrial relations systems alongside the federal system, and up to now the federal government's ability to intervene in industrial relations has depended on a constitutional power authorising it to deal with disputes which span state boundaries. More workers are covered by state awards than by federal ones.

Howard is trying to get round this problem by a new manoeuvre, basing his new legislation not on the constitutional powers which have underpinned all previous industrial relations in Australia, but on a completely different clause of the constitution, one which gives the federal government power to regulate "corporations". According to the Australian Financial Review (12 August), "big business [has] raised concerns about whether the plan to rely solely on that power [is] practical". Quite a few employers are wary of the risk of being forced into confrontation with the unions by the legislation.

Howard's majority depends not only on his own Liberals, but also on the more rurally-based National Party, which includes some maverick populists unenthusiastic about the Liberals' hard-edged free-marketism. If the new legislation is based on the "corporations power" in the constitution, then it does not cover employers who are not "corporations", i.e. it does not cover many farmers, small shopkeepers, and so on. At a minimum, farm and small business representatives are calling for big federal government hand-outs to compensate businesses for the cost of constituting themselves legally as "corporations".

In short, despite Howard's parliamentary majority, there are plenty of weaknesses in his position.

The ACTU

The Australian ACTU has issued well-written publicity against the new laws. But its leaders don't believe it is worth trying to stop the laws.

As early as March this year, "ACTU secretary Greg Combet... signalled he want[ed] to negotiate with the Howard government over industrial relations reform and want[ed] state Labor governments and unions to avoid focusing on the issue of states' rights" (Financial Review, 18 March). On 22 August Combet called for legislation to include (as a way of limiting the damage) a compulsion on employers to negotiate with a union if a majority of their employees vote for that.

Combet is reckoned to be the leader of the Left in the Australian labour movement. It was left to a mainstay of the Right, New South Wales Labor Council leader John Robertson, to retort that Combet's proposal would leave Australian workers in the same position as workers in the USA, where a similar legal duty to negotiate already exists and does not stop de-unionisation and "give-back" contracts!

In short, the ACTU is already thinking (weak) damage-limitation even before Howard has published his legislation in full. As another way of signalling that stance, the ACTU's campaign puts huge emphasis on Howard's proposed changes to unfair-dismissal law and the downgrading of the "independent umpire", the Industrial Relations Commission, but hardly any on the restrictions on strike action.

The ACTU has postponed its second planned day of action from 25 October to 15 November on the grounds that the full Howard legislation will not be published until then. But large parts of Howard's package are already being legislated or enforced. The level of industrial action, measured in striker-days, has decreased from 153,200 in the quarter April-June 2004, through 93,300 in July-September 2004 and 51,900 in October-December 2004, to 44,400 in January-March 2005. A good part of that decrease is the effect of the retrospective Building and Construction Improvement Bill on strikes in the building industry, which are a large proportion of the all-industry total.

The radical left

The radical left has called for industrial action to defeat the legislation - rightly, but in terms too abstract to have any grip. Neither the level of confidence of the rank of the file, nor the strength of the radical left in the unions, is sufficient for the radical left to make any definite calls for definite action by definite unions - beyond urging maximum support for the ACTU's days of action.

The Socialist Alliance and Green Left Weekly have, uncharacteristically but rightly, emphasised the importance of campaigning to commit Beazley to full repeal of the legislation, but have made no comment on what the state Labor governments should do now.

In 1999, when the conservatives made a previous effort to introduce anti-union legislation - much less drastic, and eventually abandoned - there was some significant autonomous organisation of left-wing union activists to apply pressure to the ACTU leadership. This time, less so. In Brisbane, for example, the Defend Our Unions Committee which some of us promoted in 1999 has been revived by left groups, but has petered out, failing to get more than left-group support.

Some left activists say that we cannot stop Howard legislating, but the "real" struggle will come later. "Howard might have the numbers in the new Senate to ram through this big-business wish list, but that's far from the end of the story... It is one thing to pass a law, it another thing to implement it. A determined campaign of industrial action... can have them running for cover" (Socialist Alternative, August 2005).

There is a half-truth here, but a dangerous half-truth - a sort of "mañana Marxism". It will be a "determined campaign" on what demands, exactly? After the law is passed? Why only then? If the campaign can be done at will, then why not do it now?

Almost certainly stronger groups of workers will be able to deter bosses from implementing the full blast of Howard's laws in their sectors for some time to come. In Britain, even after 25 years of Thatcher's anti-union laws, theoretically unlawful strikes in the post happen frequently and with impunity.

But that a stronger minority can carry on fairly confidently for a while will not necessarily mean that the capitalist class is "running for cover". When Howard has the legislation in place, he and the employers are not obliged to rush things. They know that they cannot get the whole workforce on AWAs in a matter of months. They are playing a long game.

They can afford to let the legislation "settle in" gradually. They can turn a blind eye to better-organised groups of workers at first being able to circumvent or even ignore the legislation. Then they can take on those stronger groups later, when they have become more isolated by the spread of AWAs, low-wage jobs, and traded-off conditions all around them.

The union movement can fight these laws effectively only if it holds to the first principle of trade-unionism: solidarity. That means the stronger groups of workers mobilising to help the weaker sections. It means those stronger sections thinking strategically, seeing themselves as having a long-term responsibility to the whole working class, rather than thinking only (and sometimes over-confidently) about how they can hold their own corner even if the rest of the working class goes down.

The trade union movement must push hard now on the contradictions and weaknesses in Howard's position now. Otherwise it will be all the more difficult for the movement to rouse itself to beat Howard when he has the legislation safely on the statute books.