Organisations that offer workers some choice over who represents their industrial interests should be in the same legal category as violent fascist gangs and listed terrorist organisations. This is the intended effect of amendments to laws governing incorporated associations, introduced into the Victorian parliament in mid-August by new Premier Ben Carroll’s Labor government.
The law threatens to wipe out the Retail and Fast Food Workers Union (RAFFWU), which is a challenger to Labor’s largest affiliated union—the notoriously right-wing Shop, Distributive and Allied Employees Association (SDA). Much of the media coverage has presented Carroll’s appalling attack on RAFFWU as a straightforward factional payback, after the SDA-aligned faction within the Labor caucus supported Carroll when he rolled Jacinta Allen as premier of Victoria last month.
Factional favours may well be a factor, but there’s more to it than that.
As well as being a gift to the SDA leadership, Carroll’s move is part of a nationwide trend for Labor to crack down on any idea that workers should be entitled to seek representation from a union body not currently licensed by the state through the Fair Work Commission.
Similar legislation to the current Victorian bill was passed in Queensland in 2022 under the Labor government of Annastacia Palaszczuk. And the Australian Financial Review reported in mid-August that Workplace Relations Minister Amanda Rishworth, a former SDA organiser, moved amendments to the national Labor platform at July’s national ALP conference “to bind the party to target ‘sham unions’”. According to the AFR: “The amendments say Labor will legislate to limit unregistered unions’ participation in industrial matters, including acting as bargaining representatives”.
Labor figures say that the main target of these moves are the so-called “Red” unions set up in recent years. These “Red” unions are indeed a crime against decent, principled unionism. Their main instigator is Graeme Haycroft, who has a long history in the Liberal National Party in Queensland and was a long-time, prominent member of the notorious 1980s union-busting think tank the HR Nicholls Society.
But the best remedy against right-wing unions preying on workers is political exposure, along with established unions demonstrating their superiority through organising strikes and industrial action that improve workers’ lives. This is clearly too much work to contemplate for most of today’s union leaders, and would run totally counter to their politics, which emphasises class collaboration rather than class combat. Much easier to just rely on Labor to wipe out any competitors through legal and bureaucratic methods.
It’s not just RAFFWU and the “Red” unions that are affected by Labor’s attacks. For a decade from 2015, the farm workers’ organising team of the United Workers Union conducted a series of effective—in fact, outstanding—organising drives among migrant workers on farms. These workers sometimes made use of the provisions in the Fair Work Act that allow workers to nominate independent bargaining agents to represent them at enterprise agreement negotiations.
This enabled workers to get around the dictates of the Fair Work Commission, which enforces a legal monopoly on union coverage for most industries in Australia. In the case of farms, this state-sanctioned monopoly belonged to the Australian Workers Union, which had done zero organising on farms for decades and was utterly opposed to any other union doing this organising either.
Removing the ability of workers to appoint an independent bargaining agent in these circumstances, which seems to be the intention of Rishworth’s proposed changes to national industrial laws, would pose a significant problem for workers in situations like this. Migrant farm workers would be able to secure decent representation only by overthrowing the entire national leadership of the AWU, one of the oldest and strongest bureaucratic machines within Australia’s union movement.
There’s also the case of the Independent Transport Union, a breakaway from the Rail, Tram and Bus Union in Victoria. Unlike RAFFWU, the ITU didn’t start as a project of the left, but rather as a sectional breakaway representing train drivers. But regardless of its origins, the ITU has become an effective industrial force within V/Line, Victoria’s regional rail network. The ITU’s existence as an incorporated association is clearly at risk from Carroll’s legislation.
There have been various other unions established as breakaways in recent years. For instance the Municipal and Utilities Workers Union, backed by former CFMEU secretary John Setka, briefly established a presence among some blue-collar local government workers in Victoria before the implosion of the Setka machine.
Some operations along these lines can be regarded as pretty cynical factional manoeuvres, intended to weaken or tie down factional rivals within Labor and union politics. But they also point to discontent with the generally weak industrial strategy of many unions.
Socialists don’t advocate the endless splitting of unions on principle. Our first approach to tackling the woeful lack of industrial fight in today’s trade union movement is to organise from the ground up within a union, rather than abandoning or sidestepping that fight by setting up a new, usually much smaller, outfit. But neither do we support giving limitless state-sanctioned monopoly rights to existing bureaucratic machines—which is the effect of Labor’s current moves.
Labor justify their legal crackdown by pointing to the “Red” unions, which are appalling but tiny and essentially irrelevant, and by reciting some version of the mantra that unity is strength. This is disingenuous. Labor’s current legal crackdown has nothing to do with developing the fighting strength of our unions. It’s about shoring up the bureaucratic machines that control unions, and preventing any rivals to these state-sanctioned bureaucracies emerging.
A look at the track record of the SDA, the most high-profile beneficiary of Labor’s current legal crackdown, shows that these moves have nothing to do with upholding principled unionism.
The SDA’s business model has for generations relied on making sweetheart deals with the giant corporations that dominate the retail industry in this country. In the official history of the SDA’s Victorian branch, pride of place is given to the “national membership agreement” signed by six major national retail companies in late 1971, giving the closed shop (compulsory union membership) to the SDA.
“Why the big retailers signed the agreement is not clear”, records the official history. But it’s not too hard to figure out some motives. And of course, concern for the welfare of the retail workforce was not among them. Joe de Bruyn, the national secretary of the SDA from 1978 to 2014, notes in the same history that 1972—the year after the closed shop was agreed—was the beginning of “the massive casualisation of the retail industry”.
Along with a union leadership that failed to fight, or even facilitated, attacks on its workers’ conditions, it’s not unreasonable to guess at other motives for the retail bosses to force their workforce to pay dues to the SDA.
Australian society at this time was being shaken by a wave of workers’ struggles and social movements, centred on the mass movement against the brutal US-Australian war in Vietnam. A rolling nationwide general strike in 1969 had freed Melbourne tramways union leader Clarrie O’Shea from prison and smashed the legal restrictions that had held unions back for a generation. Labor was set to come to power in 1972, with a flourishing left wing in Victoria being repressed by party leader Gough Whitlam.
In these circumstances, massively increasing SDA membership through a closed shop—and thus increasing the factional power of the hardened Cold War right-wingers who ran the SDA—can be viewed as a favour from the retail bosses not only to themselves, but to the entire capitalist class of Australia.
This motivation for the employers’ cosy relationship with the SDA is much less relevant today. It’s not like there’s a surging left anywhere in Labor, and the unions generally are at a low ebb thanks to decades of strictly enforced class collaboration, promoted by both the left and the right of the union movement.
But Labor’s introduction of enterprise bargaining in the early 1990s presented a new opportunity for the SDA to maintain its closed shop with the employers, and thus its factional power. This involved the union leadership negotiating enterprise agreements that deliberately undercut the supposed legal minimum wages and conditions set out in the retail award. In return for the SDA delivering these illegally low wages, the companies encouraged or compelled workers to be members of the SDA. Everyone’s a winner—except the workers, of course.
This business model has been severely undermined by legal cases brought by RAFFWU founder Josh Cullinan. Cullinan is a long-term union organiser and industrial advocate who, in 2015, teamed up with Brisbane trolley collector and Socialist Alternative member Duncan Hart and industrial barrister Siobhan Kelly to wage a successful legal case in the Fair Work Commission. The FWC was forced to admit it had wrongly approved the agreement between Coles and the SDA, which set the working conditions and wages of 77,000 Coles retail workers.
Widespread reporting—including in Red Flag and the Melbourne Age—showed just how dishonest the claims of workers being “better off overall” actually was, and how deep the collusion is between Labor’s biggest affiliate and the corporations it deals with.
Coles had submitted seven rosters to the Fair Work Commission to show that the agreement with the SDA resulted in workers being “better off overall” than the award, which is the legal test Fair Work is meant to apply to any enterprise agreement. The only problem was that these rosters were totally made up. Looking at real rosters of actual workers, it was clear that half or more of Coles workers were worse off compared to the award—many by well over $100 each week.
The Fair Work Commission had to admit it had utterly failed to enforce its own act. The Coles agreement was scrapped, and enterprise agreements were rewritten across the retail industry. Well over $1 billion flowed to workers in the years that followed, as companies were finally obliged to pay the award minimums.
Cullinan went on to set up RAFFWU, where he is still the director of strategic litigation. Successful legal cases continue (most recently at Domino’s Pizza and McDonalds), as well as some industrial action (including Apple retail stores, Harry Hartog booksellers and the major supermarkets), which had been unknown in the retail industry for decades thanks to the SDA.
In the eleven years since the success of the Hart v Coles case, employers have never stopped whingeing—and neither has the SDA. Though RAFFWU is still a minority presence in retail and fast food, they have severely damaged the SDA’s business model.
By limiting the ability of the SDA to undercut legal award minimums, RAFFWU has dramatically reduced the benefit the big retail companies get from herding as many workers as possible into the SDA. A detailed analysis by Josh Cullinan argues that SDA membership has likely collapsed from around 200,000 members in 2014 to 120,000 today.
Labor’s attacks on unions that lack a legal monopoly is an attempt to prop up decrepit union machines—including the SDA—but not limited to them. The attacks should be opposed by everyone who supports unions as organisations dedicated to advancing the interests of workers, rather than as bureaucratic machines that serve Labor and the bosses.
