Workplace Relations – The Fantasy of Choice


It’s wonderful to be here at the Gaelic Club to talk about this important subject "The Workplace Relations (Work Choices) Amendment Act 2005 which came into force almost two weeks ago, that is on Monday 27th March. It’s a joy for me to be here amongst friends, I really love the trade union choir, what wonderful songs, the Tolpuddle Martyrs who were charged for being in their society under a 1799 mutiny act and sent out to Van Diemens Land for 7 years of transportation until there was such an overwhelming wave of sentiment in England that the government was forced to pardon them after 4 years.

We are at a crucial time in our history. The Work Choices legislation if I might call it that and it is quite right to say it is a fallacy of choice, places all the levers in the hands of employers and diminishes the rights of working people and is one of the most anti-trade union pieces of legislation I have read in the Anglo-Saxon world in the last 100 years. I do not say that lightly.

Of even more concern to me I think, because the government is using the corporations power – and I will come to that later – it will lead to the corporatisation of labour law which will just become an adjunct of corporations law and it will commodify labour as a commodity as an adjunct to corporate power in this country. These are very serious matters. Let me begin by giving a few features of the legislation.

First and foremost it does away with unfair dismissal, that is with job security, the right of an employee to protect her or himself against arbitrary, capricious, unjust or unfair behaviour. Now with all employers under work choices, if they have less than 100 people, unfair dismissal law or job security law will no longer apply – and even if the employer has more than 100 people as we saw in Cowra Abattoir in the last two weeks you can dismiss people for operational reasons, and operational reasons are defined so widely that by using skilled lawyers you can certainly do it. This takes away enormous job security and places enormous managerial power in the hands of the employers.

Another element of the legislation is to de-collectivise Australian working women and men. The legislation puts individual work place agreements known as Australian Work Place Agreements above any form of collective agreement. At any time when a collective agreement is in operation – at any time, even before it reaches its nominal expiry date, the employer is free to conclude an AWA with any number of individual employees and they will be pulled out of the collective agreement and can never go back on it. The legislation diminishes trade unions in a whole series of ways.

The first thing I would like to comment on is it diminishes trade unions in their right to engage collective bargaining. Unless people can withdraw their labour in collective bargaining, collective bargaining is little more than collective begging. This was recognised by the Keating government when it established enterprise bargaining in 1994 when it put up the concept of protected industrial action. Workers could take protected industrial action and employers could, where appropriate, retaliate with a lock out because the notion of collective bargaining is to use the economic strength of both parties. Now they have made it almost impossible for workers to take industrial action when engaging in collective bargaining.

First and foremost they require trade unions only to bargain about non-prohibitive matter and if there is any prohibitive content such as job security and unfair dismissal or trade union training leave, any subsequent industrial action is unlawful and unprotected.

Secondly there is now a requirement of mandatory secret ballots before industrial action can be taken. The legislation takes about 80 pages to say this, it’s in such great detail and the whole idea of these mandatory secret ballots is not to give workers a democratic choice; rather it’s intended to slow down the process of being able to take industrial action and give employers time so they can prepare to meet it. It’s to do away with the spontaneity which occurs in so many ways when workers band together to protect themselves. Furthermore if any illegal action is taken without a ballot, the unions will be open to common law attack under the industrial *torts – they will be open to injunctions by the Federal or Magistrates court pursuant to provisions in the Work Choices legislation. It’s designed to make true collective bargaining with the use of economic weapons almost impossible and virtually stylised. It’s designed to weaken collective activity and to push people onto individual agreements.

The Industrial Relations Commission is almost abolished, not quite, but its main "raison d’etre" of looking after the terms and conditions of employment of ordinary workers is cut away. No longer will it be able to determine a living wage. No longer will it be able to hold test case decisions like the reasonable hours test case decision or the family decisions that were handed down as recently as last year. Instead the minimum wage will be given to a body called the Fair Pay Commission. This body is full of what I would call neo-classical and neo-liberal economists who argue that in looking at minimum wages we must take account of the needs of the unemployed, even if that means dropping minimum wages. There will not be an open transparent process I believe as there is when the Industrial Relations Commission determines the minimum wage. Instead it’s likely to be done merely "on the papers" and it is likely over time to see the minimum wage drop. As well as that the fair pay and conditions standard as it is called, simply gives employees the very bare minimum. Four weeks annual leave and they can be required almost to cash out two weeks of it. I know it says that they have their choice but if you want a job you may have to cash out two weeks of it. Ten days sick leave which is relatively generous but no paid parental leave and simply 12 months unpaid parental leave and no right after having parental leave to go on to part time work to help raise a toddler. No rights of redundancy – all these other things you will have to bargain for and as it is going to be very difficult to take strike action you will really be in the hands of the employers. It is an extraordinary anti-union piece of legislation. The waterfront case which the workers won in the High Court in 1998 has sort of been overruled by changes to the freedom of association laws so that the reverse onus of proof provision, which was so important in putting Patrick’s to shame, will no longer apply when seeking interim injunctions in the future. It’s clearly called the "waterfront overruling clause" of the Work Choices legislation.

I fear for this country, I fear for the fact that workers are going to be in a perilous position. We are going to see, I think within a very short time, 30% of working women in part time employment becoming part of the working poor as is the case in Great Britain. I have no doubt that that will be the result. You will have to read it together with the Work to Welfare legislation which also is an attack upon women, particularly women who are unpartnered and who have children and who will be pushed back into the work force. It is designed to decollectivise – but the most important concern for me is the levers of power that the government have used. The Federal constitution in Section 51 consists of a series of powers which the Federal Government must rely on to enact legislation. There is a wonderful power called the labour power. It gives the Federal Government powers to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. It was the real success of the founding fathers that it was put into our constitution, it’s a workers charter. It says that we can establish independent machinery, independent from capital, independent from labour and independent from government to determine fair and working conditions in this country. The Federal Government in enacting the Work Choices scheme has decided after 100 years not to use that power at all except in some transitional matters because it enshrines independent tribunals and independent trade unions. The government instead wished to give power unilaterally to management but to a special kind of management. In enacting Work Choices the primary head of power that the government has relied upon is the corporations power. This is the power that allows them to make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth.

How will it work? Well the courts have held that a law will be valid under the corporations power if it applies to corporations directly or if it applies to those persons engaged in conduct with corporations – and so the argument runs that when employees are working for corporations they are engaging in conduct with corporations so the corporations power will uphold the law specifying terms and conditions of employment by incorporated employers. Corporations have enormous power in this country and what we have done in this law is give them extraordinary unilateral power over our workforce in the hope that it will make our workforce docile and bring in a neo-liberal hegemony into this country. Isn’t there something wrong about using a corporations power to govern workers on the one hand and on the other hand not using the labour power in the constitution which was designed to help workers? There is something wrong there.

Can I use a frivolous example to make a point? The Federal constitution also has powers over marriage and divorce. Supposing we were able to amend the constitution and put in the constitution women’s power; it would simply allow the parliament to make laws with respect to women. Could the government use the women’s power to enact the law allowing women and men to marry each other and to divorce each other. On the reasoning of the corporations power it could. Women could marry and divorce men because the power is a woman’s power and it applies to women. Men could divorce and marry women because in divorcing and in marrying, men would be engaging in conduct with women. But after a while wouldn’t we perhaps see the law as a little imbalanced, wouldn’t we see men as mere appendages. Perhaps we men are mere appendages, mere appendages to women because we are relying on the women’s power. We might say if we wanted to have fair and balanced marriage laws, why not rely upon the marriage power in the constitution? The same argument applies to the corporations power. If we use the corporations power to enact our labour relations law, labour becomes an adjunct to corporations and workers become but commodities to corporations. When determining the validity of the law the questions will be whether these labour laws enhance the profitability of corporations and the economic welfare of Australia. If you want fair and reasonable laws for labour relations you must look at whether the laws apply fair terms and reasonable conditions of employment for employees and employers and that’s why we have a labour power in the constitution.

I know that the Work Choices legislation is draconian and we all know that and I don’t resile from that but what I want to tell you is something worse, that by using the corporations power this government has placed into the hands of corporations, and particularly large international corporations, extraordinary managerial power to control workers and by using the corporations power they are making workers mere adjuncts or appendages to corporate power in this country. It is quite extraordinary. It has happened in no other country of which I am aware and it is something which we have to be very very concerned about indeed.

I don’t know what the best tactics are. I am very concerned. I think there is a great gap between democratic governments in western society and the people. Most of us – and I was at demonstrations – didn’t want to send troops to Iraq and they were sent. Most people in Australia I don’t think wanted the Work Choices legislation – it certainly didn’t figure in the 2004 election campaign – but we have it. Most of us don’t want to see Australian citizens locked up in Guantanamo Bay but we have it. I am very concerned about the way society is going. I don’t want to digress too much but there is so much to make me disturbed and concerned as a citizen of this country.

What I think we need to do is talk about what sort of labour laws we should have and argue for. There are very simple ones. We should say where employees, a majority of employees in a workplace want to be dealt with collectively they should have that right. That is in accordance with ILO Conventions 87 and 98 – work choices give the power to employers to determine whether they will bargain collectively or whether they will not. We should also be saying when determining a minimum wage we want an open transparent process where parties are able to put their arguments in open court because this process has served us well for 100 years and this is the right of citizens of this country. We should also be saying that citizens, industrial citizens, should not be at the mercy of arbitrary, unfair or capricious power where job security is concerned; that all citizens deserve to have any determination reviewed by some form of independent body to ensure that it is not capricious, arbitrary or unjust. It is the birthright of Australian citizens. These propositions seem to me to be so simple and so self evident that they should form the cornerstone of a new ALP policy. We shouldn’t go back looking at the old award system or the Industrial Relations Commission perse. What we should be looking at is a modern labour law which is worker centred – centred upon Australian industrial citizens giving them the rights that workers have in the United States and in Canada and in England and in Europe. If a majority of people in the United States, that great home of capitalism, in a workplace want to be dealt with collectively then the employer must deal with them collectively. If it can be the case in the home of capitalism in the United States why can’t we Australians have it? Why have we had taken away from us the rights that are the birth rights of most workers in the western industrial democracies. We’ve had it taken away, can I say by a wicked government that is trying to dampen down worker power and to make individuals into what John Howard called on his 11th July speech at the Sydney Institute last year, enterprise workers who will work as drones and will owe total loyalty to the enterprise and have no loyalties elsewhere. That’s not the sort of country I want to live in, I don’t think it’s the sort of country you want to live in. What I want to see is fair and balanced laws that are fair to employers and employees. I don’t want to see laws as appendages to multi-national corporations under the corporations power, I want to see the constitution used fairly so that we can have a society where our children and grandchildren can live in in harmony, in cooperation and leading useful lives as citizens of our great nation. Thank you.

*Torts – Breach of a duty imposed by law (but not breach of contract) making the offender liable to action for damages

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