Australia’s beleaguered union movement faces a series of challenges following the 18 May election. Big business lobby groups have presented a wish list of anti-worker “reforms” to the re-elected Morrison government.
First, the Better Off Overall Test is under attack. This is the crucial piece of law which says that, for an enterprise agreement to be approved by the Fair Work Commission, every single worker must be better off compared to the industry award. Abolishing the BOOT was a cornerstone of Liberal prime minister John Howard’s WorkChoices laws in 2005, allowing basic award conditions such as breaks and penalty rates to be stripped from workers with nothing in return.
The BOOT was reinstated under Labor’s 2009 Fair Work legislation. But until recently, the commission routinely waved through agreements, accepting without question employer claims that workers would be better off. This let many employers rip off their workers by tens or even hundreds of millions of dollars, for instance by underpaying penalty rates and overtime for part timers. However, recent legal cases have forced the Fair Work Commission to increase its scrutiny and start to do what the law requires it to do – make sure that every single worker under an enterprise agreement is better off.
This has met howls of outrage from bosses. The commission is now taking longer to approve enterprise agreements, making sure they comply with the law. The anti-union hard heads of the Australian Mines and Minerals Association are now screaming that the Coalition government must fix the “appalling performance” of Fair Work – in other words, stop the commission from providing workers their legal entitlements. And Innes Willox from the Australian Industry Group told Fairfax newspapers that he would be “pushing hard” to see the strict application of the BOOT reversed.
Second, big business wants to restore its unrestricted right to classify workers as casuals. In a significant legal case last year, the Federal Court found that Paul Skene, a truck driver employed by the labour hire company WorkPac, had been incorrectly classified as a casual. Skene had been given his full year’s roster in advance for work in a Queensland coal mine. This regular work pattern proved he was not casual, the court found. As a result, he was entitled to the basic conditions of permanent employees, including paid annual leave.
This ruling threw into doubt the ability of employers to classify workers as insecure “casuals” with reduced entitlements. Unsurprisingly, big business groups now demand that this “loophole” be closed. Australia’s capitalists have built their businesses on insecure work and are in no mood to tolerate improvements for workers on this score.
Finally, there is a wish list directed at stifling unions. The Australian Industry Group has called for a tightening of right of entry rules for union organisers, further restricting their already very limited legal rights to enter workplaces and talk with workers. One logical target would be the provision, passed in the dying days of the last Labor government, allowing unions to enter worksite lunchrooms to talk with workers.
The Australian Mines and Minerals Association has also called for the fast tracking of the farcically named “Ensuring Integrity Bill”, which has been stalled in the Senate for 18 months. If enacted, this vicious bill would let any “person with sufficient interest” – potentially including any government minister, boss or disgruntled union member – take legal action against a union. Any legally unprotected industrial action, or failure to observe one of the many administrative burdens on union officers, or a single member believing they have been treated “unfairly”, could trigger significant legal action. The penalties available under the proposed law include barring union officers from holding positions, deregistration of the union or imposing extraordinary administrative burdens on the union – even having an outside administrator, paid out of union funds, directing the union’s operations.
The Morrison government no doubt agrees with this log of claims from big business. But there is little indication of how quickly it wants to roll out these attacks. Government and business will be tempted to use Morrison’s unexpected win, and the weak state of our unions, to go in hard. Yet political circumstances – a widely despised government, with a nearly record low primary vote, and no mandate for anything because they took no policies to the election – mean the government risks overstepping. Morrison no doubt recalls the fate of John Howard, losing his seat and government in the WorkChoices election of 2007, and Abbott and Hockey, whose 2014 budget provoked a backlash that wrecked much of the government’s agenda.
One guaranteed line of attack, however, is the continued tightening of the legal straitjacket in which Australian unions operate. Hard right head kicker Christian Porter – who presided over Centrelink’s “robo-debt” scheme as social security minister – remains the attorney general, and industrial relations has been added to his cabinet responsibilities. Porter’s comments to the Australian Financial Review rehearse big business talking points about rolling back strict interpretation of the BOOT. He also told the Australian that his initial industrial relations focus “will be on the law enforcement aspects of the portfolio, ensuring adherence with Australia’s industrial relations laws, particularly on building sites across Australia”.
Legal action against unions has been effective for the ruling class – arguably more so than the “big bang” attacks on the whole working class like WorkChoices. Threatening crippling fines against unions that step out of line pushes the unions to police their own members and stop industrial action. A prime example of this is the construction industry. Two decades ago, construction workers in Melbourne would routinely stop work in response to an underpaying subcontractor or a serious health and safety breach. Companies had the option to sue the union, but industrial realities – they still had to get their building built with a unionised workforce – meant that this was very rare.
The creation of the Australian Building and Construction Commission in 2005 dramatically changed this equation. The ABCC, unlike the construction companies, could prosecute for minor breaches of industrial law. With the unions now facing massive fines for even short stoppages, the number of strikes dramatically decreased. The results have been predictable. In finishing trades such as plastering, painting and floor coverings, always a challenge to organise for the construction unions, union conditions are now the exception rather than the norm. And for the first time in generations, an increasing number of substantial multistorey buildings are being built in Melbourne by non-union companies.
The ABCC boasts of winning more than $8 million in fines against the main construction union, the CFMMEU, since it was restored to its full powers just a couple of years ago. Other government organisations such as the Fair Work Ombudsman and the ACCC have also stepped up legal actions against unions in recent years. With Porter in charge, we can expect even more legal assaults.
All of this presents our union movement with enormous challenges. But the biggest challenge isn’t actually the employer’s wish list, the vicious Morrison government or even the restrictive legal framework (largely Labor’s creation) that unions operate within. The biggest challenge facing our unions is the politics and culture of the unions themselves.
For decades, the bulk of Australia’s union movement has relied on legal standing, tribunal cases and cheerleading for Labor to win and keep gains for workers. Despite occasional wins, it’s clear as daylight that this orientation has, overall, been a damaging failure. The proof is decades of declining union density, record low levels of industrial action, stagnant wages and declining conditions. The dismal inability of the ACTU’s Change the Rules campaign to win seats on 18 May is just one more example of a failed strategy failing again.
If we want to turn around the unions’ fate, we need a wholesale reorientation – to building and using industrial strength of workers in the workplace. We need a strategy of mass mobilisation and mass defiance, rather than unending compliance with the laws that are strangling our movement. In the few days after the election, there was a glimmer of the debate we need, with various union figures complaining about the orientation of Change the Rules. This debate needs to be opened at every level of our movement.
Morrison got his miracle on 18 May, courtesy of a pathetic Labor “opposition”. But no saviour from on high is coming to rescue Australia’s union movement. Only the hard work of thousands of activists and a return to the fundamentals of organising, striking and picketing, can withstand the attacks to come and turn our fortunes around.