By Colin Foster
"Employees engaged on the Portside Wharf Development construction
site at Hamilton [Brisbane] attended a stop work meeting. The meeting
commenced at about 6.30am and concluded at about 7.00am...
"This meeting took place during working hours and may amount to
Unlawful Industrial Action contrary to the provisions of the Building
And Construction Industry Improvement Act 2005... Individual
workers... fines up to $22,000. Corporations [employers and
unions]... fines up to $110,000.
"Further, should any worker who took part in this stoppage receive
wages for that period, the worker, and the employer who paid the
wages, may be in breach of section 42 of that Act... Such a breach
also attracts fines..."
The text comes from a letter from the Australian Building and
Construction Commission, a special policing body set up under new
anti-union legislation by John Howard's conservative coalition
government in Australia. It is typical of many now showering in on
union organisers. The ABCC has powers to require any construction
worker to give evidence to it. Workers have no right to remain
silent. Refusal to give evidence can bring a jail sentence.
Howard's special legislation for the construction industry is already
in force. The federal government has also already secured compliance
from Australia's state and territory governments (all Labor) that
workers in such areas as TAFE (further education colleges) will be
offered individual contracts ("Australian Workplace Agreements") to
buy out some of their "award" conditions.
Howard's main legislation is designed to push Australia away from the
century-old system of "awards" (agreements, negotiated by unions,
which are legal documents, "registered" with official Industrial
Relations Commissions, and which cover whole industries, including
un-unionised sections) and towards individual contracts, individually
"negotiated" between each individual worker and the employer. Along
the way, it restricts the possibilities of legal industrial action,
and limits union access to work sites.
That main legislation, "Work Choices", has now gone through the
federal parliament, and comes into force in March.
The Australian Council of Trade Unions (equivalent of the TUC)
organised a well-supported day of action against the legislation on
15 November. Now, however, it visibly plans to organise no further
action, but instead to continue to publicise the injustices of the
new legislation and to look towards it being repealed, in due course,
by a Labor federal government. In the meantime, individual unions are
doing their best to finalise new industrial agreements before March,
and sometimes failing, sometimes succeeding (despite the federal
government advising employers to hold off until after March).
Labor leader Kim Beazley has promised to replace "Work Choices" by
something "much fairer" (unspecified). ACTU secretary Greg Combet has
already suggested that his bottom line would be to a right (on the
lines of US or British law) for unions which can win recognition
ballots to negotiate collective agreements (i.e. agreements which
employers could not undermine by "buying out" maternity leave, sick
pay, overtime rates, etc. worker-by-worker). US and British
experience shows how weak a protection such a right would be. Union
activists need to mobilise politically to demand restoration and
retention of the right for unions to win legally-binding protection
for workers across whole industries, and for much wider rights for
union recognition. (In France, unions have a right to recognition as
soon as they have even one member in a workplace, and the right to
strike is a constitutional right of each individual worker).
But even if Labor were promising much better, just waiting for it
would not be adequate. What damage will be done in the meantime? And
how can we be sure that the Labor politicians will keep their
Many left activists are, essentially, waiting for a "big bang" - a
point where an employer or government will impose some spectacular
penalty (not just the $500 or $1000 fines which have already been
levied), and the whole union movement can be mobilised in resistance.
The model is a big strike wave in May 1969 when Clarrie O'Shea,
secretary of the Victorian tram workers' union, was jailed because
the union refused to pay a fine. Under the "award" system in
Australia, strikes have only ever been legal under limited
conditions. The tram union was fined for breaching those conditions.
The strike wave forced O'Shea's release and made the law's
anti-strike powers unenforceable for several years after.
That strike wave is a good model, but not all-sufficient. In the
first place, even the O'Shea strike wave did not get the law's
anti-strike powers off the statute books. In fact, eight years later,
in 1977, the Liberal federal government of Malcolm Fraser introduced
new anti-strike provisions which have since been enforced, though
In the second place, the Howard government, and groups like the
Business Council of Australia which have long been pressing for
legislation such as that now coming in, are playing a long game.
Shifting the industrial system from awards to individual contracts
will be a gradual business. Once they have the legislation in place,
they can afford to enforce it bit by bit, picking their fights. Also,
under the new legislation, workers or union officials who refuse to
pay fines will not be jailed. They will have assets seized, or money
deducted from their wages.
Thirdly, active preparation is needed, rather than passive waiting
for the "big bang".
The Socialist Alliance and the DSP (the biggest group within it) are
promoting a petition, based on a call from Geelong Trades and Labour
Council, for the ACTU to call another day of action in March. The
petition is certainly better than the response to it from some
left-wing union officials, who oppose further ACTU action on the
grounds that it will be illegal and anyway probably smaller than 15
November and hence "a sign of weakness" (weaker than doing nothing?)
But it is not enough.
In 2005 Workers' Liberty argued for unions to focus on mobilising to
force the state and territory Labor governments to refuse cooperation
with the new legislation and its associated measures. In fact,
despite the potential leverage which the most important unions have
as Labor affiliates, the unions have passively accepted the state and
territory governments abandoning their few spats of defiance.
Although the state governments are still pursuing a High Court case
to get Howard's legislation ruled unconstitutional, in the meantime
they are cooperating.
A new approach is needed. Leverage for it may have been given by ACTU
secretary Greg Combet's declaration on 15 November that he would
refuse to pay any fines under the legislation. In itself the
declaration was cheap talk. The ACTU is not likely to call unlawful
strikes or get fined. But a general trade-union "pledge" to defy
fines would be a powerful stand - and a campaign for it, an excellent
way to prepare for direct action when the occasion arises.
A pledge would read something like as follows: "We collectively
pledge to stand by any trade unionist or trade union faced, as a
result of prosecution under Howard's new industrial relations
legislation, with seizure of assets or wages or with jail. We
ourselves will refuse to pay fines under this unjust legislation, and
we will support other trade unionists making the same refusal".