Workers’ rights: what are the Libs up to?

The Liberals have every reason to play down their attacks on workers’ rights. The Howard government’s sweeping WorkChoices “reforms” produced the largest working class demonstrations in Australian history. Despite the serious limitation of the 2005 campaign, the response was enough to sweep Howard’s regime from power.

So there was little chest-beating from the government when, at the end of August, the House of Representatives passed the Fair Work Amendment Bill – representing a significant chunk of the Liberals’ policies on industrial relations. These changes are now before the Senate.

Individual flexibility agreements

One of the most controversial aspects of WorkChoices was that it allowed bosses to offer individual contracts – with just five minimum conditions – as a condition of employment. Individual flexibility agreements (IFAs) are a hangover of this regime. Under Labor’s “Fair Work” laws, every award or enterprise agreement has to allow workers and employers to enter into an IFA. An IFA allows a worker to trade off conditions in return for some sort of payback. Under the Liberals’ amendments to IFAs, the payback can be a “non-monetary benefit”. So, for instance, a core condition such as weekend penalty rates could be sacrificed in return for the boss allowing some flexibility that a worker needs – a late start on a particular morning, for instance. There is close to no oversight of IFAs – they don’t have to be lodged, let alone assessed, by any government body.

Under the Fair Work regime, IFAs must be “genuinely agreed” by the worker and can’t be offered as a condition of employment. Already, this provision is widely flouted. A recent study by the Fair Work Commission found that of the 11 percent of bosses who use IFAs, more than half offer them as a condition of employment.

The Liberals’ changes are a step towards reviving the individual contracts of the WorkChoices era. But in this as in so many areas, the Liberals are simply building on the legacy of Labor, which only tinkered with the WorkChoices structure rather than ripping it out, root and branch.

Right of entry

It used to be pretty straightforward. At one of my first factory jobs, in a Melbourne clothing factory, we were all being underpaid. I phoned the union, and a few days later there were the union organisers: in the boss’s office, looking over his accounts, holding meetings with the workers and wandering around the floor.

This all changed under WorkChoices. Union organisers had to give 24 hours’ notice before they could legally enter a work site. They had to specify exactly what employment standard had been breached and with enough detail to make it hard to maintain the confidentiality of any worker who called them in. The boss could dictate where the organiser was allowed to go and how they were allowed to get there – down to which route they could walk!

Labor legislated to allow officials access to work sites for “consultation” with union members but otherwise maintained all of the WorkChoices restrictions on right of entry. Not all unions abide by these provisions, and not all bosses enforce them. But they can be a serious obstacle to unions trying to establish a presence in a workplace. It’s common for management to restrict union meetings to an area just outside a senior manager’s office.

Just before losing office last year, Labor passed laws which make the work site lunch room the default meeting place if another room can’t be agreed. They also forced bosses of remote resource jobs, where company transport and accommodation are the only option, to enable union officials to visit.

The Liberals’ amendments do away with these late-term Labor reforms. They severely restrict any right for “consultation” visits, ending easy right of entry at workplaces where unions are not already party to an enterprise bargain – that is, where unions are relatively weak.

Industrial action

Stopping work is our side’s most powerful weapon – which is why it’s pretty much illegal. Laws against strikes arrived in Australia with the first convicts and their guards, and have been on the books ever since.

Under their current version, to take legally protected industrial action (that is, action we can’t be sued over or sacked for), we have to wait for an existing enterprise agreement to expire – typically three or four years. When bargaining for a new agreement, unions can apply for the right to take protected action. They have to meet a series of conditions including “good faith” negotiations and conduct a secret ballot. Then, before anything can actually happen, the union has to give three days’ notice of their plans to the bosses so they can minimise the impact of any strike.

Before last year’s election, the Coalition promised to legislate so that “protected industrial action can only happen after there have been genuine and meaningful talks between workers and business”. This sounds straightforward – but what if the boss refuses to talk?

For 18 months from 2010, waste disposal company JJ Richards simply refused to bargain with the Transport Workers Union, which covers its garbage workers at a depot in suburban Sydney. Then, when the union applied to take industrial action to force the company to the table, the company argued that this shouldn’t be allowed – because there had been no bargaining!

The company lost the case at the Fair Work Commission, but this approach will be perfectly legal under the Liberals’ amendments. To get around this, unions and workers will now have to jump an additional bureaucratic hurdle and secure a “majority support determination” to initiate bargaining.

As it stands, even if a union wins the right to take protected industrial action, the Fair Work Commission (or the minister for workplace relations) can rule that the industrial action is threatening the “health or welfare of the population or part of it, or causing significant damage to the economy”. One of the Liberals’ amendments will allow any person who claims to be affected by a strike to apply to Fair Work to terminate industrial action.

“Greenfields” sites

A great degree of damage was done under the “greenfields” clauses of WorkChoices. Companies could shut down a factory or warehouse, restart the business at a new location and dictate terms to unions and workers. Decent wages and conditions disappeared. Many unions signed terrible, concessionary “greenfields” deals just to get in the door, with the aim of improving standards down the track.

There are difficulties under the Fair Work laws, but unions can negotiate and, if there is no satisfactory outcome, can start bargaining with the boss as soon as the “greenfields” site opens.

Under the Liberals’ new laws, unless the unions agree to the bosses’ terms, they will be forced into arbitration – a process which overwhelmingly favours employers. Bosses will have to negotiate only with the “main” union on the job. This makes it even easier for bosses to make “sweetheart” deals with grubby right-wing unions.