The ACTU congress in Melbourne on 25-26 October adopted a strong policy for workers' rights as its alternative to John Howard's "Work Choices" and Building and Construction Industry Improvement Act.
The big question now is whether the unions will really fight for this policy, or leave it in the minutes-books and go along with the Australian Labor Party adopting a watered-down version which looks similar from a distance, but will in practice leave vastly more scope for union-busting and exploitation.
The ACTU policy includes:
1. Union recognition as a right for every individual worker, regardless of whether his or her fellow-workers are too scared to claim that right. "Employers should have a statutory responsibility to recognise and deal with a union representative acting on behalf of a member". This right is very important to establish a foothold for union organisation in workplaces where the boss is fiercely anti-union.
2. "All workers should have access to a fair, cost effective, non-legalistic and speedy process for determining claims that a dismissal is unfair... Where a dismissal has been found to be unfair, reinstatement should be the primary remedy... [There should be] a fast track mechanism for hearing allegations of discrimination or victimisation on the grounds of union activities, and the provision for interim orders reinstating the status quo pending determination of the allegation".
3. "Authorised delegates should have legislated rights including access to and communication with workers, inspection of the workplace and documents.. [There must be an] effective right of entry [to workplaces] for union officials". This proviso, and the one on unfair dismissal, are also vital for union organising under hostile management.
4. A right to strike. "Legally protected industrial action should be available to employees during bargaining, without the need for a secret ballot. However, as a matter of good union practice, unions should not take action unless it has been democratically endorsed". Repeal of sections 45 D and E (from 1977) of the Trades Practices Act, which ban "secondary" or solidarity action. "All provisions of the Trade Practices Act applicable to unions and employees should be repealed".
5. The straightforward "repeal of the... Building and Construction Industry Improvement Act 2005 [which] renders almost all forms of industrial action in the building industry unlawful".
6. Employers should be legally obliged to take part in collective bargaining. "Congress opposes the establishment of any union membership 'threshold' which would trigger a right to initiate a collective bargaining process. The right of union members to representation should not be conditional upon the level of union membership at the workplace... The legislation should expressly require the [Industrial Relations] Commission to make good faith bargaining orders where a majority of employees support the collective bargaining process. This means the making of orders would be mandatory". In other words, bosses can escape collective bargaining only when the union can find no index - no petition, no mass meeting, no petition, nothing - that the majority of workers want collective bargaining.
7. A strong "safety net" through minimum wages and conditions and through awards. A wide range of "conditions would be guaranteed to every worker. While they may be improved through bargaining or the award system, they could not be traded off or removed". "There should be no limit on the matters to be contained in awards".
8. Pattern bargaining - banned by Work Choices - should be legal, and indeed in some cases may be mandated by the Industrial Relations Commission.
The ACTU policy includes some provision for "last resort" compulsory arbitration of disputes, but is explicitly not a simple reversion to the old system, before Howard, where compulsory conciliation and arbitration was the legal norm and bedrock. It tilts heavily towards a single Australia-wide system of workers' rights, although it would also "support the inclusion of provisions in the national industrial relations laws enabling parties to opt to be bound by State industrial relations laws rather than the national legislation, in particular where the community of interest of the employees is best served by regulation in a single jurisdiction".
Such a strong policy can be only be fought for by strong action, both industrial and politically.
The ACTU has organised series of large rallies and demonstrations against the legislation. The next one will be on Thursday 30 November. It has been obvious from the start, however, that the ACTU leaders see no possibility of defeating Howard's legislation directly by industrial action.
Given a strong, militant ACTU leadership, Howard's legislation could probably have been defeated straight off. Although union membership has fallen in Australia from over 50% in 1979 to only about 25% now, workers in some sectors such as construction have an assertiveness and an economic clout which few groups of workers in other old industrial countries have.
Even now, every scrap of defiance and direct action against the Howard laws that can be got off the ground is important. Every spark increases the possibility, always present, that some employer or Howard government agency will overreach itself and spark off a flame of industrial resistance hot enough to burn through the legislation.
Activists should be demanding that the union leaders campaign in the spirit of defying the legislation, not just of lobbying for action by a Labor government. Tactics like "community pickets", which push at the edges of the legislation, are important.
But the political campaign is important, too. The political campaign, to mobilise Australian workers to insist politically on a full measure of workers' rights, must be won. Otherwise, even if we win, we lose.
And the political campaign interlinks with the industrial campaign. A political campaign, which can be started today, at will, in every workplace and every working-class organisation, even when the confidence to take direct action against the laws does not yet exist, is crucial to building up workers' sense of the rights they can and must claim, and thus to building up confidence and determination.
The standard response by Australia's activist left to Howard's legislation - to call for industrial action to defeat it, and to refer to the model of the strike wave of one million workers in May 1969 that freed Melbourne tram workers' leader Clarrie O'Shea from jail - is not wrong, but it is insufficient. It lacks grip.
In practice, since the activist left is not strong to call industrial action on its own initiative, or seriously to propose that particular unions take confrontational action, the policy reduces to the activist left campaigning for maximum turnout for the ACTU's various protest actions. Again, not wrong, but insufficient.
The political campaign is vital.
Politically, the problem is that the Australian Labor Party leadership is steering towards a highly-diluted version of the ACTU policy, something which looks like it from a distance but in practice amounts to no more than already exists in industrial legislation in the fiercely anti-union USA, or maybe in Blair's Britain. Or, more precisely, the problem is that the ALP leadership is doing that, and the union leaders - even the more combative and left-wing ones - are not challenging it publicly.
Speaking to the ACTU congress, Labor leader Kim Beazley committed himself to nothing more than collective-bargaining rights where a proven majority of workers want them, and the abolition of Australian Workplace Agreements.
"If a majority of employees want a collective agreement, they will get one... I will abolish John Howard’s wage-cutting Australian Workplace Agreements". All that wrapped up in clouds of nauseating piffle about "Aussie values" (commendably absent from the ACTU policy, which explicitly breaks from Australian traditions and looks for lessons from labour movements in other countries).
There is a truly satanic devil in the detail here. In formal terms, George W Bush's USA has laws which mandate collective bargaining and requires union recognition when a proven majority of the workforce want it.
An ACTU committee studied the US legislation - its report wryly quotes the AFL-CIO's chief lawyer, Jon Hiatt, as saying that he "found it unnerving that anyone would seek to use the United States laws for anything" - and spells out in detail that it is proposing something different. But, as things stand, the ALP could introduce laws roughly similar to the USA's - as the Blair government in Britain did in 1999 - and say it has fulfilled its promises.
Under US legislation, the "default" condition is no union recognition. A union has to get enough proven support to gain a ballot, keep its support together during a probably long wait for the ballot, and win the ballot in order to get recognition. Even if it jumps all those hurdles, the laws requiring employers to do collective bargaining in good faith are so toothless that bosses can and do regularly flout them with impunity.
The ACTU report describes what is wrong with the US and British versions of "collective bargaining if a majority wants it".
"In the US... unions achieve certification in as few as 45 to 50 per cent of cases where a ballot is held. Further, in a third of cases where the union is recognised, a collective agreement is never made... This is despite the fact that unions do not initiate a vote until 60-70 per cent of employees have signed an authorisation card indicating their support for the union to represent them in collective bargaining..."
How can unions lose the ballots when they already have 60% or 70% support signed up?
"The conduct of an uncontested certification ballot takes between four and seven weeks, compared to 5 days in Ontario. Delays commonly occur where an employer challenges the bargaining unit proposed by the union, which will delay the ballot by several months...
"[In the meantime] workers are routinely fired for taking part in organising campaigns. Obtaining an order for re-instatement can take years... There are no penalties or fines for unlawful dismissal, and there is little incentive for employers to comply with the law.
"Employers regularly use compulsory one-on-one meetings with supervisors and captive-audience meetings (closed compulsory meeting) to 'convince' workers not to join unions... The process for hearing a charge of unfair labour practices means that it takes on average two to three years for enforceable orders to be issued.
"The AFL-CIO estimates that US$4 billion is spent each year on anti-union activity. They estimate that in 25 per cent of union campaigns for certification at least one worker is fired, and in 70 per cent of organising campaigns the employer sends a letter to the workers' spouses. In 92 per cent of campaigns for certification the employer holds a meeting on site without a union representative, to argue against the unionisation of the workplace and the introduction of collective bargaining".
Experience in the USA is the reason why the ACTU advocates that a secret ballot ordered by the Industrial Relations Commission should only be a last-resort method of testing the majority view in a workplace on collective bargaining. In the USA, such ballots are only initiated if the union already has a majority by another measure (cards signed by the workers), and yet the unions often lose them.
Even in less anti-union Canada, "The communications union, the CEP [told the ACTU that it] had adopted the practice of seeking a protection letter safeguarding activists' jobs before making application for a ballot... When the laws allowed for a bargaining right without a ballot, the CEP would routinely get certification with 55 per cent of the workforce indicating support for the union. In contrast, under the ballot system, [the union] says, [it] would not consider filing for a ballot without 65 to 70 per cent of the workforce expressing support".
The British law of 1999 is a bit different, and union-busting is lower-key there. But the results are not good.
The average density of union representation, and the percentage of workplaces having union representation, have declined, despite a relatively large increase in recent years in public service jobs which already have higher rates of union representation than the private sector.
"While the legislation has sped up the recognition process", the ACTU committee reports, "some argue that the law tends to confirm unions in areas where they are already strong, but does not have any impact where unions are not well established.
"There had only been 150 cases (covering 40,000 workers) in which employers had been forced to recognise a union..."
The ACTU, rightly, demands something quite different from the US or British legislation. But there are several reasons to fear that Beazley's Labor will try to fob off workers with a version of Tony Blair's British law.
In the first place, Beazley and Labor's front-bench industrial relations spokesperson, Stephen Smith, have refused to commit themselves on anything beyond the bare formula "collective bargaining if a majority wants it". When challenged on the ACTU's call for union recognition as a right for every individual worker, they have responded that they don't believe that the ACTU means that. But the ACTU does mean exactly that. It is right to do so.
Secondly, Beazley has made it clear that the reason for this refusal is that he is desperate to keep on side with big business.
He told the ACTU congress that John Howard had changed the laws to favour employers. Mr Beazley said Prime Minister John Howard fixed the rules to favour employers. "Some would want us to tilt all the rules the other way. But I won't make that mistake".
Oh no! If the conservatives change the law in favour of the top one per cent of super-rich, it just stands to reason that it would be outrageous for a Labor government to change the law to favor the 80% who sell their labour-power for a living! Obviously democracy says that one wealthy exploiter should have at least as much weight as 80 workers! The Liberals can run a bosses' government - that's normal. But us aim for a workers' government? Oh no!
To clinch the point, Beazley rapidly followed up the feeble assurances he had given to the unions with a sweetener for big business, by promising performance-related pay for teachers (27 October).
When the ACTU first sketched out its policy, in mid-September, Beazley likewise "balanced" his vague welcome to the ACTU policy by offering the idiotic opinion that the "important element that’s missing in this framework" of Australian bourgeois governance is "the regular voice of business" (speech to Labor Business Forum, 18 September).
Seeking otiose guarantees to the big end of town that their voice will not be "muffled" or "excessively filtered", Beazley promised that a Labor government "will establish a Council of Business Advisers to operate as an ongoing source of business consultation and advice to the Prime Minister... members will also have direct, ongoing access to senior ministers and the Prime Minister... And I see no reason why they shouldn’t, from time to time, also come to the Cabinet table".
Australian capital may not mind a mild union-recognition law on US or British lines, but it wants nothing like the ACTU policy. Big business will not be quiet about its demands. If the trade unions are quiet, leaving the stronger elements of ACTU policy to rest in the minutes-books, then we will never win a decent measure of workers' rights.
To do that, the Australian labour movement has to break from collaboration with the bosses and the bankers. Make the union leaders fight for their own workers'-rights policy, politically and industrially!