'One thing to have laws, another to enforce them.'


Pip Hinman

According to Marcus Clayton, an industrial lawyer and labour activist, the government's new workplace relations bills are designed to "provide the legal framework for bosses to slash wages and conditions, smash collective organisation, and thereby increase the profits and domination of the economy by giant multinationals and big business".

The laws are also designed to go much further, and attack vulnerable communities, he said. "But, having laws on the books is one thing; the powers that be have to enforce them to make them effective."

Clayton was speaking at the June 11 National Trade Union Fight Back Conference in Melbourne, attended by some 350 unionists and community activists from around Australia.

Clayton said he thought that PM John Howard's decision to avoid providing much detail on the legislation in his initial statement on May 26 was deliberate, to allow the spin doctors time to crank up their Orwellian speak about how the "reforms" would be "fairer".

According to Clayton, the six main changes the government is seeking to introduce are designed to reduce wages and conditions, undermine the bargaining power of unions and increase the power of bosses.

He summarised the main points of Howard's IR agenda as:

  • To abolish the remedies against unfair dismissal;

  • To provide the legal framework in which Australian Workplace Agreements (individual contracts) can override collective agreements, thereby allowing for inferior wages and conditions;

  • To radically alter the way minimum wages are set (they will be set by an Australian Fair Pay Commission) so that it is easier to legally pay workers even less;

  • To abolish the award safety net and replace it with just five conditions (minimum hourly rate of pay, sick leave, annual leave, unpaid parental leave and maximum hours of work), which will mean many workers lose conditions (like weekend shift loadings, public holiday rates, redundancy pay, overtime, allowances and casual loadings) and;

  • To attack collective organisation on the job and try to keep unions out of workplaces through more restricted right of entry.

This last "reform" would reduce the capacity of unions to organise across industries and within workplaces, and the government intends to greatly increase penalties for unions and officials, delegates and workers who breach this, Clayton said.

According to Clayton, "The Workplace Relations Act is already very complicated, and [the government] is going to make it even more complicated. For example, in a collective agreement, there is currently a 'no disadvantage' test, which means that the federal Industrial Relations Commission cannot certify the agreement unless there is no disadvantage to the employee."

"The government is proposing to get rid of this test and replace it with an 'Australian Fair Pay and Conditions' standard with the minimum conditions already mentioned. This is greatly inferior to the current system', said Clayton. It will also do away with collective bargaining, so that the agreement will be lodged with an employment advocate and take effect immediately with no scrutiny.

Industrial action would end up in the federal or state commission — after negotiation or arbritation had failed, Clayton said. But it was the federal ALP that introduced protected industrial action at the federal level, something, that "legitimised the notion of unlawful industrial action". Clayton argued that Howard is basing his laws on that precedent. "He is trying to make industrial action unlawful all the time, but based on the legitimacy of the legal framework."

While Clayton says that the government will find it hard to ban industrial action, it wants to increase the number of hurdles that unions have to jump over before union action is deemed legal. He cited the new building industry laws as evidence of this.

"The essence of the new laws is to prevent workers from using the weapon of taking action — the only weapon they have. But the whole of Australian history, and the history of the working class around the world, is about breaking laws."

According to Clayton, "The key question is power. The whole industrial relations system is based on the respective power of workers and bosses — and that is always about industrial action. Historically, in Australia, industrial action was always illegal ... but it happened all the time. It's one thing to have laws, but another thing to enforce them."

Clayton reminded the conference about the "dark times" in the history of union struggles, while pointing out a proud struggle tradition. "The Tolpuddle Martyrs were transported out here in the 1840s, and within a couple of decades were the core of the organised working class that became the first in the world to win the eight-hour day.

"At Eureka, miners were killed, but about a decade and a half later some radical democratic reforms were introduced. In the 1890s, troops were used against the shearers and maritime workers. Yet, soon afterwards, they took the then-radical step of forming their own party — the Australian Labor Party.

"The wharfies of the 1920s and 1930s fought against the 'dog collar act' — an unprecedented attack by troops and police and scabs on the wharfs — but by the 1950s and 1960s, the Waterside Workers' Federation was one of the strongest unions in Australia."

On the issue of a possible High Court challenge — something that can only be launched when the new laws are in place — Clayton's view was: "One should not get distracted by legal strategies, as very often they are a dead end. They don't work if that is what everything's channelled into. But they can be an important part of a broader and mass campaign to defeat the bill."

Winning this campaign is going to take time, Clayton concluded. "We need education, agitation, explanation and organisation to develop this struggle into a mighty mass movement."

From Green Left Weekly, July 6, 2005.
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