By Jonathan Singer
Legal industrial action by workers will be virtually impossible if proposed amendments to the federal Workplace Relations Act (WRA) are passed, according to the ACTU. The measures are being presented by federal industrial relations minister Peter Reith as "even-handed" and "democratic".
In truth, the amendments shift the legal balance further in employers' favour. Measures specifically applied to unions — bans on pattern bargaining, closed shops and imposing secret ballots for industrial action — attack workers' ability to organise and to control their unions.
Reith's amendments target not only collective action by workers, but also the tactics used by the union movement since the WRA was passed with the Australian Democrats' support in 1996.
The ACTU's main actions in the last three years have been "living wage" cases. It has sought to underpin enterprise bargaining by seeking significant improvements to the lowest award rates of pay, as well as keeping awards as a whole in line with overall pay increases.
The Australian Industrial Relations Commission (now to be renamed the Workplace Relations Commission — WRC) has increased only the lowest awards in proportion to increases in overall pay. In living wage case hearings, the government and the employer federations have called for much smaller increases, confined to the lowest paid.
Now Reith wants this entrenched in legislation. The WRC is to be directed that "awards do not provide for wages and conditions above the safety net", wages are to be set "to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community" and the WRC "must not have regard to the maintenance" of the relative differences in pay between the different classifications of individual awards.
Moreover, award increases will not be allowed until an award has been "simplified" in accordance with other proposed amendments. Simplification means losing award protection for entitlements by removing them from the list of "allowable matters". Under threat are "skill-based career paths", tallies and bonuses, long-service leave, cultural leave, industry holidays, various allowances, some redundancy payments, termination notice requirements and jury service leave.
ACTU president Jennie George, writing in the June 25 Workers Online, said, "The clear purpose of the changes proposed is to make bargaining the primary means of regulation of wages and working conditions. The government is seeking to entrench individual contracts as the preeminent form of employment relationship."
Such contracts — Australian Workplace Agreements (AWAs) — have been given first place legally by the amendments. AWAs will now be able to be made in a workplace that has an operating collective agreement.
AWAs still only cover a tiny proportion of the work force, although sub-contracting puts workers in a similar relationship to employers. For the foreseeable future — even if the government's approach is implemented without resistance — most workers will continue to work under collective arrangements, either awards or, increasingly, certified agreements.
The amendments are designed to ensure that workers, even if unionised, bargain with employers from a weakened position. This would be so even in a recognised bargaining period, when industrial action is "protected" if conducted according to the WRA rules.
Weakening the unions
Under the ruse of protecting "freedom of association", the amendments propose to prohibit "closed shops". These are defined as workplaces with at least 60% coverage by a union or a job where membership is "an express or implied condition" of employment. The government's Employment Advocate office may examine union membership lists to investigate whether this situation exists.
This does not, strictly speaking, prevent higher than 60% union membership in a workplace. However, a ban on "illegal recruiting" makes the closed-shop ban a catch-all against union recruitment. Even discussing with a worker why she or he should join the union could be seen as "pressure". The amendments allow the Employment Advocate to attack strong unions.
The amendments require a secret ballot of union members before industrial action. Industrial action would not be authorised unless at least 50% of workers involved take part in the ballot and a majority approve it. This means that the government, rather than union members, controls how unions make decisions.
The organisation of the vote will delay industrial action and impose unnecessary costs on the union. Postal balloting, which will be the normal method, will make it hard to achieve 50% participation.
Secret ballots mean that important decisions will no longer be taken after a collective discussion by union members. Individual and isolated workers will vote at home. This increases the ability of employers, capitalist media and the government to influence "public opinion" and pressure unionists to vote against industrial action.
Even if a majority votes to take action, the amendments do not allow the vote to be binding. A statement must appear on the ballot paper that: "You are not required to take industrial action even if the majority of people in the ballot agree to take action".
Closing the loopholes
In drafting the amendments, the government has sought to get rid of loopholes in the anti-union WRA.
Unions will only be able to get WRC orders against employers engaging in unprotected industrial action in the case of a lockout. Other actions, such as reducing pay or changing work conditions by reversion to the award when an agreement's period has expired, or forcing individual contracts on employees, are not covered.
Sackings are specifically excluded. While a union can still claim unfair dismissal, the Gordonstone mine ruling in the Federal Court on June 25 shows this can not be used to force re-employment.
The WRA allowed "protest" industrial actions. The amendments will ban all industrial action during the life of a certified agreement, or in support of matters that cannot be included in an agreement — such matters not directly related to the relationship between employees and employer. Orders by the WRC and the possibility of civil court action against unprotected industrial action are also accelerated.
This will make industrial action over job cuts, safety problems or employer breaches of agreements, including stop-work meetings, illegal. Boycott actions by unions for political purposes will be banned.
Only workers whose employment is covered by a proposed agreement will be allowed to take industrial action over that agreement. Other members of a union which is negotiating with an employer, and who are employed by the same company, are not allowed to take action. This means a union cannot back negotiations for an agreement at a new workplace with industrial action at other sites.
Construction and manufacturing unions have begun campaigns to establish pattern bargaining, where unions win common conditions for a whole industry in all agreements with employers. The amendments will ban this by requiring that a union's log of claims is appropriate to a single enterprise. That will be determined on the basis of the employer's views.
Finally, the amendments make full-day strikes the only form of industrial action available to workers, since payment for a day on which any industrial action occurs is prohibited.