Against Howard's legislation: make the unions fight for full rights!

Submitted by AWL on 2 October, 2006 - 3:09

A discussion contribution from Martin Thomas. The left, in my view, should pick up and run with the proposals recently published by the ACTU, "A fair go at work: collective bargaining for Australian workers".

They need to be supplemented, but they include provisions which would give Australian workers a workable legal right to organise, gain union recognition, and get union-negotiated agreements.

The Australian Labor Party has promised to repeal the industrial relations legislation of John Howard's conservative government, but remains vague about what it will put in its place. ALP leaders' speeches point to a policy that would look roughly similar to the ACTU proposals from a distance, but includes far fewer workable workers' rights.

Socialists should push the union leaders into actually fighting for the ACTU proposals, and against their dilution into feebleness by the leaders of the Australian Labor Party. We should work to push the more combative and left-wing unions into overt political campaigning, rather than letting themselves be restricted to the pace and aspirations set by the right-wing unions.

In March 2006, Howard's "Work Choices" legislation came into effect. It is a measure more drastic than any single one of the Tories' eight major anti-union laws in Britain (1980, 1982, 1984, 1986, 1988, 1989, 1990, 1993), and probably more drastic than all eight combined. Its core is to shift Australian workers from their decades-old "award" system (wages-and-conditions regulations registered with an official commission, and having legal force) and from union collective bargaining, onto individual contracts ("Australian Workplace Agreements"). It also abolishes union organisers' rights of access to workplaces, cuts back unfair dismissal rights, and imposes strict requirements for secret ballots before strikes.

Special legislation for the construction industry - where Australian workers have had higher strike rates than in other industries - came into law in September 2005. It makes a very wide range of industrial action "unlawful"; introduces fines of $110,000 for a union and $22,000 for an individual for taking such action; and sets up a special police force, the ABCC, before which no construction worker has the right to remain silent.

Already the legislation has produced a sharp fall in strike rates, especially in the construction industry.

107 Western Australian building workers currently face proceedings in the Federal Court for participating in a stoppage in support of a sacked health and safety representative. Each individual employee can be fined up to $28,600.

The legislation is also beginning to put pressure on wage-rates and conditions. In May the chain-store Spotlight pushed in AWAs which abolished annual leave, personal carer’s leave, unpaid parental leave and a 38 hour week in "return" for a pay rise of just 2 cents an hour.

The ACTU has organised series of large rallies and demonstrations against the legislation. The next one will be on Thursday 30 November. The Australian Labor Party has made its central campaign plank against Howard a pledge to repeal the legislation.

It has been obvious from the start, however, that the ACTU leaders see no possibility of defeating Howard's legislation directly by industrial action.

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, and some other sectors, such as school teachers, are much better organised than in other countries.

Given a strong, militant ACTU leadership, Howard's legislation could probably have been defeated straight off. But no such ACTU leadership has been created in the last 20-odd years of retreat by Australian labour; nor could it have been. We have to start from where we are.

The confidence to push the ACTU leaders into attempting massive direct action does not exist at a broad level. Particular unions and sections of workers which are more militant feel that they are not strong enough on their own to smash the legislation head-on, at will, and they are probably right about that.

The standard response by Australia's activist left to the 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 thus not wrong, but 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.

In 2005 Workers' Liberty argued for a drive in the unions to make them force the state and territory governments - all Labor - to refuse to cooperate with the federal government's new legislation and its accompanying administrative measures, such as compelling the state governments to offer AWAs to their own workers on pain of losing federal funds.

Such a political battle might have thwarted the legislation - its constitutionality is still up for challenge in the High Court - and might have provided activists with the leverage necessary to raise workers' confidence towards the level needed for confrontational direct action.

The unions did nothing of the sort. Some deferred to the Labor politicians. And when more combative unions say: "vote Labor, but don't expect much from the politicians: the rest has to be achieved by industrial action", that lets Labor off the hook just as much as deference does. (And then again, some industrially combative unions, such as the Builders Labourers Federation in Queensland, are right-wing in ALP politics).

Now the gap between the ACTU plan and Labor's language creates a new space where activists must apply leverage, and where political passivity - whether or not dressed up in "militant syndicalist" costume - will hold us back.

The first staging-points for the battle are the ACTU triennial congress on 22-26 October in Melbourne, and Labour's federal conference in April 2007.

Some of us discussed the fight for union rights recently with Dave Noonan, the new national secretary of the construction division of the big construction and mining union CFMEU.

Noonan is, by his own lights, a Marxist. He dismisses the Trotskyist movement ("when have they ever made a revolution?") but concedes some ground to the two-part answer: 1. "the Trotskyists" did make a revolution in Russia in 1917; 2. to have made "revolutions" like the Chinese of 1949 - which immediately imposed a police state on China's workers - is nothing to boast about.

Despite having something of an old CPA attitude to Trotskyism, and despite his only dalliance with political affiliation outside the ALP being the pro-Moscow splinter Association of Communist Unity of the 1980s, he is an anti-Stalinist. (He never joined the ACU). He himself currently faces a court case under anti-union laws (not the new Howard legislation, but older laws). He is a thoughtful and well-read man, a union official who has come up from the rank and file rather than going into the job as a "career" from university, and still in touch with the rank and file.

It is impossible to refute him when he argues that the CFMEU construction division cannot simply, at will, immediately reproduce the sort of strike wave that freed Clarrie O'Shea in 1969.

But on the political front Dave Noonan does not dispute that much more could have been done, and can be done, at will, than the union leaders have done and are doing.

The leaders of right-wing unions like the AWU, he says, won't accept the ACTU pushing a more ambitious policy than the ALP will accept. Maybe so. But that cannot be, and we cannot afford it to be, a reason for the more combative unions to fail to pursue a political fight. That fight could also mobilise many of the rank and file members of the AWU.

Unlike unions in Britain, for example, Australian unions are often heavily involved in left and right Labor factions. But that usually means union leaders being involved in backroom haggling about which faction's candidates get which posts - not left-wing unions conducting an independent fight on working-class issues, which is what is needed here.

Labor has no current policy statement on union rights, and its attitude has to be deduced from front-bench speeches. The latest is by industrial relations front-bencher Stephen Smith (25 September):

"If an employer does not want to collectively bargain, the only way that you will see a collective bargain effected under Labor is if the Industrial Relations Commission is satisfied that a majority of the employees - determined by a secret ballot if necessary - want to collectively bargain and the independent umpire, in its discretion, orders that collective bargaining should occur".

Labor has also, after some dithering, announced that "a Beazley Labor government will abolish John Howard's Australian Workplace Agreements... [with] sensible transitional provisions for existing AWAs. If both the parties genuinely want them to continue for their agreed term, they will. And at the end of that term, the parties will transition to alternative agreements..." (federal Labor leader Kim Beazley, 13 June).

Smith seems to propose a right to collective bargaining where a majority of workers want it - the same formula as the ACTU.

But a truly satanic devil is in the detail here. In formal terms, the USA has laws which mandate collective bargaining and requires union recognition when a proven majority of the workforce want it.

The ACTU 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.

The ACTU proposal is different from the US legislation both in the channels for workers to get union bargaining rights, and in the provisions it advocates as background.

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.

Under the ACTU proposals:

1. If a union has even one member in a business, the boss must recognise it. The ACTU "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". Once there is even one union member in a workplace, the employer must deal with the union over union members' grievances, and involve it in collective bargaining if there is any.

2. The "default" condition is collective bargaining, with the union involved. An employer can escape the requirement to negotiate a collective agreement only by proving to the Industrial Relations Commission that a majority of the workforce does not want a collective agreement.

3. "Genuine freedom of association and an effective right to bargain collectively depend upon employees having ready, practical access to advice, information and representation by trade unions in their workplace. In both Italy and Germany, unions have a statutory right of access to the workplace. We need to restore practical and effective right of entry laws in Australia..."

4. Collective workplace bargaining must be underpinned by "a decent, relevant and secure safety net of pay and employment conditions contained in awards and/or legislation that is able to be adjusted to take account of community and/or industry standard..."

5. "There should be an ability for parties to engage freely in 'pattern bargaining’ - that is, to pursue common claims and outcomes in two or more single business agreements..." The ACTU proposes that in cases of dispute the Industrial Relations Commission should decide on how wide the scope of the "pattern" can be, and lays down detailed guidelines for such decisions. The Howard legislation bans pattern bargaining altogether.

6. The legal procedures, and remedies against employers who flout union rights, should be simple and rapid. "In Ontario [Canada] the Labour Relations Board is empowered to hold rapid hearings to reinstate activists who have been dismissed during an organising campaign... [A Canadian academic expert told us] that the introduction of expedited hearings on dismissal in Ontario in 2004 was the single most effective law reform that assists organising drives... We think that the Australian model should include a fast-track hearing and interim reinstatement orders where an authorised delegate is dismissed or otherwise victimised during bargaining". The ACTU recommends that if the Commission finds a boss not to be negotiating in good faith, it can hand down "orders to ensure workers have appropriate opportunities to receive advice and information from their union... including paid time off for meetings, opportunities for workers to meet with their union representatives individually or in small groups, and access to workplace communication mechanisms... [or] orders to ensure delegates have appropriate resources to perform their representative roles".

7. "A report on collective bargaining would not be complete without emphasising that the right to bargain includes the right to strike. In the US, where certain public sector workers can bargain without the right to take industrial action, unions referred to this as 'collective begging'." The ACTU also proposes laws against recruiting scab labour - "protected industrial action should not be able to be undermined by use of external replacement labour" - and a ban on lock-outs.

The proposal about union recognition being automatic if the union has even one member in the workplace has caused special outrage in the media. Labor politicians have been repeatedly challenged on it, and have replied that they don't believe the ACTU means that. But the ACTU does mean that. It is right to do so.

Every individual worker should have the right to union representation, regardless of whether their fellow-workers are too scared or too complacent to exercise that right. And for unions to organise in a hostile climate, it is very important that the law gives the union a recognised "foot in the door" while it still only beginning to build up strength, rather than the union having to operate more or less "underground" until it calculates it has a solid majority.

France's legislation not only mandates union recognition when the union has even one member in the workplace, but also requires the employer to allow the union to select accredited representatives and give them facilities. In everyday fact, it is not uncommon for the one or two union representatives in a French workplace to be the only union members there.

For reasons which it doesn't explain, the ACTU's report is based on study of and comparison with only a few countries, all English-speaking: USA, Canada, Britain, New Zealand. Since all those countries, with the partial exception of Canada, have seen union rights beaten to a pulp since the 1980s, that sets the bar rather low.

It would have strengthened the ACTU's proposals if they had looked at some continental-European countries where union rights have been better sustained. In France and Italy, for example, the right to strike is a constitutional right belonging to every worker. Britain, Australia, and the English-speaking countries generally, have never had a positive right to strike, but only a system of exemptions and loopholes allowing strikes to be legal in some conditions.

The ACTU's true statement that the right to bargain must includes the right to strike would be given much more force if their proposals included the introduction of a legal right to strike. That would also involve the repeal of Malcolm Fraser's 1977 sections 45D and E of the Trades Practices Act. Those sections ban solidarity strikes. It is ACTU policy to demand their repeal, but that policy is mentioned nowhere in the new report.

The ACTU's proposals about a "safety net of pay and employment conditions contained in awards" would be much stronger if they said explicitly that the Howard government's successive moves to limit the range of employment conditions covered in awards must be repealed.

For all that, the ACTU proposals contain a powerful counter to Howard's legislation. And the ACTU is not wrong to reject simply demanding a return to the status quo. Australia's "status quo" was based on compulsory arbitration, with working-class action to improve conditions only a grudgingly-tolerated (though, for a while, increasingly common) exception. The "penal powers" under which Clarrie O'Shea was jailed in 1969 are still on the statute books.

The Howard government does not like the old system because it was rigid. It tended to allow gains made by stronger groups of workers flow on to weaker. But the freedoms that the old system gave to working-class action were mostly de facto, rather than legally-protected, freedoms.

There are at least three strong reasons for fearing that the ALP will go for a minimal version of the general formula "collective bargaining where a majority wants it", one without any of the provisions that give it bite in the ACTU's version.

In the first place, that is what the Blair Labour government did in Britain after 1997. Beazley is less of an ostentatious "Blairite" than Mark Latham, the Labor leader before him, who resigned in January 2005, and the ALP retains much more of the structure of a working-class-based party than British New Labour, but today's ALP draws a lot on Blair's policy model, just as Blair in the 1990s drew a lot on the record of the Hawke-Keating ALP governments in 1983-96.

Second, we have had weeks of the ALP assuring the media that the ACTU really means something quite mild, and the ACTU not speaking out publicly against its demands being watered down that way.

Third, just a few days after the ACTU published its policy, Kim Beazley tried to counterbalance it 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".

No Labor leader making such offers is going to push through policies that big business doesn't like (unless he's thinking that the capitalists will be so seized with laughter at his ridiculous obsequiousness that they won't notice what he's doing). Australian capital may not mind a mild union-recognition law on US or British lines, but it wants nothing like the ACTU policy.

The ACTU report describes what is wrong with the US and British versions of "collective bargaining if a majority wants it". It is important that the labour movement understands this.

"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.

"Since the right to recognition came into force in 2000, over 1,100 agreements have been signed (or around 200 per annum) and over 310,000 employees have gained the right to be collectively represented by a trade union. The proportion of workplaces employing more than 25 employees that recognise unions has risen from 24 per cent to 32 per cent since 1998..."

However, the average density of union representation has declined, despite a relatively large increase in employment 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, 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..."

When the ACTU writes that "there should not be employer greenfields agreements", it indicates it also knows about another problem with the British legislation - that a good number of the recognition deals have been deals struck by bosses with compliant unions before new sites open. Such deals give the union "recognition" in return for promises (made before any workers are there to express an opinion on them) such as no strikes, and protect the bosses against recognition campaigns by other unions more likely to stand up for the workers' interests.

A "British" law would not serve. And the ALP has failed to commit itself on any of the vital points necessary to give any union-recognition law bite and weight: rights of minority groups of union members, rights of access of union organisers, rights to strike, legalisation of pattern bargaining, restoration of full award "safety nets", and the rest.

Every scrap of defiance and direct action against the Howard laws that can be got off the ground is important. We must work to maximise the defiance. We must work towards 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.

The best way we can work in that direction now, today, at will, is to press for a political fight in the unions to make the Labor Party commit itself to the full measure of workers' rights indicated in the ACTU policy.

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