Labor’s workplace law changes a dead end for workers

3 March 2024
Jerome Small

Internationally, some major unions have responded to the cost-of-living crisis by taking serious industrial action. Though results have been mixed, the UK has seen the most significant wave of strikes since the 1980s. In the US, some workers have won significant breakthroughs—including wage rises of 80 percent or more for some university staff, and for low-paid United Auto Workers members after their nationwide “stand up” strike campaign last year.

In Australia, by contrast, it’s difficult to detect a pulse in most of the union movement. Union leaders have spent most of the past few years praying for a Labor saviour. The results are dismal: historic cuts in living standards and a rate of industrial action still bumping along the bottom.

And the fruits of Labor’s much-hyped workplace law reforms? Despite the wailing and gnashing of teeth from employer groups, corporate Australia has nothing to fear from the latest raft of amendments to the Fair Work Act pushed through parliament by the Albanese government.

There are dozens of amendments, including whole new complicated sections affecting gig workers and road transport contracting. Many of the changes will take years and multiple court challenges before their actual meaning is clear. However, some broad trends are evident.

Strike action by workers is the lifeblood of any effective union movement. So it’s telling that none of Labor’s recent amendments to the Fair Work Act are aimed at easing the punitive legal restrictions on industrial action (most of which were introduced by Labor as part of the shift to enterprise bargaining in the early 1990s and in the current “Fair Work” regime introduced in 2009).

Workers in the US can lawfully participate in an “unfair labor practice” strike. This allows workers to strike if an employer victimises union members, for instance by sacking delegates. Workers in the UK can strike at any time after holding a ballot, in relation to any “trades dispute”, which can include sackings, health and safety, or pay.

No such rights exist for workers in Australia. All industrial action is prohibited, under any circumstances, except every few years when the renegotiation of a workplace contract comes around. So an employer can sack a string of union delegates, and the workers can’t retaliate by striking. Instead, workers have to plead at the Fair Work Commission for a remedy, which can take years and almost never results in the reinstatement of a worker—even when they are found to have been unfairly dismissed.

Labor’s changes have added being a union delegate to the list of “prohibited reasons” for which employers are supposedly forbidden from sacking a worker. However, this will make zero difference in most cases, given that few bosses (or their advisers) are stupid enough to declare openly that they are sacking an employee for this reason.

What about other rights? Workers can also benefit from having a clearly defined workplace right, established in legislation with a straightforward enforcement mechanism.

But this kind of provision is largely absent from Labor’s legal changes. Much more common is the approach we see in Labor’s rewrite of the Fair Work Act clauses governing casual work. These include a revised conversion clause, supposedly to enable workers to transfer from casual to ongoing roles.

Australia has long had one of the most casualised workforces of any “advanced” capitalist country. This is despite most workers classified as “casuals” working a relatively predictable pattern of shifts over many months or even years. The work is clearly ongoing, but the worker is denied an ongoing role.

If Labor wanted a solution to the problem, they wouldn’t have to look far. The Victorian construction union’s pattern enterprise agreement from a few years ago has a simple clause: anyone employed on a regular pattern of work for six weeks is automatically converted to an ongoing role. There are no exclusions, no years-long legal processes to work out, no obligation for the worker to identify themselves as a troublemaker by applying—just automatic conversion.

Labor could also look at some agreements negotiated by the United Workers Union in warehouses. These specify a six-monthly audit of additional hours done by casuals and part-timers, with any hours regularly worked above the minimum being offered as ongoing, permanent hours.

Labor hasn’t done anything like this. Its new definition of casual work and the accompanying conversion clause have loopholes big enough to march a couple of million casuals through without giving them any extra job security.

For starters, it is entirely up to the insecurely employed worker to request conversion—not for the faint-hearted given their insecure employment status. The employer can also refuse to grant conversion on extremely amorphous “fair and reasonable operational grounds”.

The other significant problem with Labor’s approach to casual conversion: it’s up to the worker to demonstrate that they no longer meet the extremely ambiguous and as yet untested definition of “casual work” that Labor has written into the Fair Work Act.

This is going to be difficult, partly because a section of Labor’s new definition of “casual work” states: “An employee who has a regular pattern of work may still be a casual employee if there is no firm advance commitment to continuing and indefinite work”. This is the exact argument that the High Court accepted in 2021 when it ruled that Robert Rossato, a truck driver in a coal mine, had to stay as a “casual” even though he’d been given a roster for work which specified every shift for the next 12 months. And now this is written into Labor’s legislation.

There’s plenty of work to do in coming weeks and months, sifting through the changes and seeing how they play out in practice. But the fact that this unfit-for-purpose clause is all that’s on the table for casuals from Labor—and that there seems to be zero criticism of this approach from any part of the union movement—tells us volumes about both Labor and the state of our unions.

Jerome Small is Socialist Alternative’s industrial organiser. He will be speaking at the Easter Marxism conference in Melbourne on “Rebuilding unions and class power in 2024”.

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