Graham Matthews
The federal government's Work Choices legislation aims to make illegal much of the "bread and butter" work of unions. The threat of a $33,000 fine awaits unions that continue to organise their members. The legislation also threatens the big stick against unions that attempt to include "prohibited content" in enterprise agreements.
While much of the focus of the ACTU's advertising campaign has been on the impact of the new industrial relations laws on individuals' rights at work, unions are also a major target of the laws.
As ACTU secretary Greg Combet told the November 15 union protest in Melbourne: "It will be illegal to ask for workers to be protected against unfair dismissal when negotiating an agreement — and there's a $33,000 fine just for asking. And there will be a $33,000 fine for asking for union involvement in a disputes settlement procedure. A $33,000 fine for asking for the right for people to attend union education courses. A $33,000 fine for asking to protect jobs against contracting out. A $33,000 fine for asking for a commitment to collectively bargain. And a $33,000 fine for asking for anything else the government might like to ban."
The federal workplace relations minister is empowered by the legislation to make regulations to prohibit in enterprise agreements any matter he decides to. Technically, a majority of either house of parliament can overturn such a regulation, but for so long as any party has a majority in both houses, these regulations amount to legislation by decree.
Further, a matter declared "prohibited content" can be applied retrospectively. Unions that include in an agreement matters that are prohibited after the agreement has been concluded will still face a $33,000 fine for not having the foresight to read the minister's mind!
The right to strike almost ceases to exist under the Work Choices legislation. Unions contemplating protected industrial action (during a bargaining period at the conclusion of the term of an enterprise agreement) are forced to enlist the Australian Electoral Commission (AEC) to organise a secret, postal ballot to seek members' agreement. The ballot procedures must be organised by the workers (or their union), but no paid time is set aside in the legislation for this. At least 50% of members at the particular workplace must vote, and at least 50% must agree to the proposed industrial action for it to proceed.
The union is expected to cover 20% of the ballot organising costs, with the federal government paying the remainder. If the boss can convince the Industrial Relations Commission that the union has not genuinely attempted to seek agreement, the IRC may even refuse permission for the ballot to go ahead.
In contrast, to organise a legal lockout of workers, an employer need only give employees three days' notice. No ballot is required.
Where unions do manage to organise the AEC ballot, and achieve a return of 50% with 50% voting in favour, any protected industrial action may also be halted by the minister, citing damage to the health and wellbeing of the community or a key sector of the economy. The IRC may also suspend or terminate a bargaining period (and therefore a union's right to protected industrial action) if it believes that a "cooling off" period would make a resolution more likely.
The IRC may also suspend or terminate a bargaining period on application from a "third party". The definition of "third party" in the legislation is absurdly broad, including anyone who's been damaged or harmed in some way by industrial action.
"It's very rare that industrial action doesn't hurt somebody other than its intended target", Andrew Stewart, professor of law at Flinders University, told the ABC's PM program on November 22. "If you had schoolteachers on strike it would mean students or parents of students could take that action."
Extreme penalties
Unions NSW's Workers Online explains in its November 4 edition, "It will remain an offence, punishable by jail, however, for unionists to try to 'coerce' an employer or employee to make a collective agreement". The newsletter goes on to explain, "Union advocates and journalists who highlight unfair Australian Workplace Agreements could face six months' jail".
Union officials who refuse to pay the fines levied for seeking to include "prohibited content" in enterprise agreements, or the myriad of other offences created by the Work Choices legislation, would receive a court order to sequester union assets. If they refused to divulge the location of union assets, they could face jail for contempt — the basis of Clarrie O'Shea's jailing in 1969.
Union organisers could also face jail for trespassing, under the severely restricted right of entry provisions in the Work Choices legislation. And under the Building Industry Improvement Act, construction union officials face jail for refusing to give evidence to the Building Industry Commission, or refusing to hand over documents.
In response to the government's legislative attacks, unions have experienced a surge in growth. The November 19 Adelaide Advertiser reported that the SA branch of the Liquor, Hospitality and Miscellaneous Union had grown by 12.5% in the last year, the National Union of Workers (NUW) grew by 10%, and the Construction, Forestry, Mining and Energy Union grew by 5%. The article also cited a Morgan Poll released on November 18 that found that 1.5 million workers not in a union now wanted to join one.
The TAFE section of the NSW Teachers Federation has grown by 11% in the last six months alone, according to NSWTF assistant general secretary for post-school education, Phil Bradley, who spoke to Green Left Weekly in a personal capacity. Unions not hitherto known for their militancy are being forced by the scale of the government's attacks to organise their members for a fight. "Every time the Howard government makes a major announcement regarding its IR reforms, our phones ring off the hook", Martin Pakula, Victorian secretary of the NUW said in a statement on November 17. "Working families can see that all the safety net protections that Australians have enjoyed for more than 100 years will be gutted and there will only be one place for them to turn; their union."
"The Howard government has launched a full-scale attack on the rights of working people and on the unions who represent them", Pakula continued. "But as our membership figures show, working families will not take these changes lying down ... We are in this fight for the long haul and will maintain the momentum until we overturn this despicable legislation."
The Work Choices legislation is "totally unfair and any opportunity for union officials to pursue basic civil rights on behalf of their members will still be pursued", Bradley told GLW. He expects the legislation to impel the union movement into more united action. "There's a clear statement on the books by the NSW Teachers Federation, for example, to consider a general action, which would obviously include mass rallies and industrial action, in the first six months of next year in the face of this appalling legislation", he said.
"We've had to take industrial action in the past on behalf of members' interests, even though technically it was illegal action. And in the face of unjust and unfair legislation like this, there is a clear understanding that you have to oppose it if it's there, and that means a reasonable level of civil disobedience. So I imagine you'll see support for action when the union is called upon to take that action.
"You only have to look at the scope of support for the November 15 day of community action" Bradley continued. "We had 600,000 or so turning up to defend [union] rights and that was possible for all sections of the union movement. That support will be more forthcoming as more and more people become aware of the unconscionable provisions in this legislation and how severely it will impact on their basic rights, and their basic conditions and pay ... more and more people are going to come to get involved in this."
Bradley commended the Transport Workers Union's action on the M4 motorway on November 15, "which was a very strong action in the face of provocation".
From Green Left Weekly, November 30, 2005.
Visit the Green Left Weekly home page.