The Fair Work Bill: is this 'fairness' Tracey can believe in?

March 13, 2009

The Fair Work Bill (FWB) being decided in the Senate will be weakened by Labor's deal with the opposition and independent senators, which further delivers the corporate agenda to undermine gains for workers' rights.

I posted on substantial union and academic criticisms of the FWB. Working families' interests are not going to be protected during this unprecedented capitalist crisis.

I checked with "Tracey". You remember her in the Australian Council of Trade Unions (ACTU) TV advertisement where she is at home with her two children and her boss calls her to come into work but she has no one to mind her kids and is threatened with the sack. "You can't sack me", she says but under Work Choices she was.

How does Tracey negotiate her rights at work under Labor's FWB?

Deputy Prime Minister Julia Gillard promised Tracey the legal right to a family-friendly workplace. She is pleased that the National Employment Standard allows her to have a conversation about working hours to suit her family. But her request is not a legal right — it cannot be enforced if the employer says no.

Like millions of Australians, she works for a small business with less than 15 employees. Under the FWB, Tracey can still be sacked unfairly and, like under Work Choices, has no right to apply for reinstatement until after 12 months.

Protection against unfair dismissal is an individual right for all and employees in small business ought not be denied it. If Tracey works in a large business, she has only seven days to lodge her unfair dismissal claim, a technicality to defeat the remedy.

Tracey argues with her boss. He then explains that she is made redundant instantly with no notice. She gets no redundancy pay, despite her loyal work for 10 years. She finds that the FWB and the so-called "modern award" system exempts small business employers from providing extended notice and the minimum redundancy pay.

Tracey hears how Gillard deliberately backed small business exemptions to provide redundancy pay. There is not even an employer requirement to notify employment centres of redundancies or to notify the union for assistance when less than 15 are made redundant.

Yet Gillard still allows business CEOs to receive millions in "golden handshakes" and does nothing about excessive corporate pay.

Tracey finds out that Australian Workplace Agreements continue for five years. Powerful employers still press non-union and individual agreements.

As a casual, Tracey sees she still has little ability to enforce her limited rights. Given the recession she is even more insecure. Tracey, along with millions of other casual and part-time workers, is even more exploited.

Tracey wants advice from a union representative about her rights. But her employer used the legal Work Choices devices to frustrate her right to have union advice. These right of entry restrictions remain under the FWB.

Tracey joins her union, organises with her fellow workers and prepares for collective bargaining. She is dismayed to find that, just like Work Choices, the FWB enforces legal limitations on what workers can bargain for.

Kevin Rudd promised to let employers and workers reach agreement on any matters they choose. Under the FWB the content of enterprise agreements will continue to be restricted by the archaic requirement to deal with matters directly "pertaining" to employment relations. This legalism will cast doubt on the ability to enforce commitments to tackle climate change.

Tracey, with her young children in mind, was keen for environmental reforms for their future, for green jobs and for action on global warming. She is upset she could not raise these issues freely in a collective bargaining agreement.

Furthermore, legitimate community-backed "green bans" are still "unlawful".

She was troubled that attending an ACTU rally or union community action is still unlawful. The FWB does not have protection for democratic participation in legitimate protests.

Tracey is angry Australian workers' rights are less than the international minimum labour standards set by the International Labor Organisation (ILO).

Tracey and her co-workers are so upset with the authoritarian, disrespectful bullying by management that they gather up enough courage to believe that they could stick together and to put on industrial bans in protest.

They say to their employer if they do not receive fair play then, as a last resort, they have no other means but to take industrial action. They were upset to find out that the many legal restrictions on lawfully withdrawing their labour are the same as under Work Choices. Howard's anti-union penal powers remain.

The FWB retains the repression of strikes. Workers risk having their industrial action stopped by commission or court order. Or they face being dismissed, and their union fined, for a so-called "unlawful" strike.

Under the former arbitration system, after a strike, the dispute was settled. But under the FWB in most circumstances Tracey cannot go to arbitration.

When faced with worse treatment by an employer, Tracey finds that workers are not allowed legally to respond with strike action during the period of a Certified Agreement. The new Fair Work Australia, like Work Choices, only has the power to order the "unprotected action" to stop, thus defeating the industrial action — a blatant denial of the human right to strike.

Tracey's union argues in collective bargaining for a new collective agreement over 18 months with no resolution, so steps for lawful enterprise protected action are started. She finds her employer, the same as under Work Choices, could use lawyers to delay the protected action ballot, rather than dealing with their claims.

After many months of delay and legalisms from her employer, the protected action ballot had strong support. The work force was at last able to bargain. Tracey finds out that there were many ways under the FWB, retaining the same provisions as Work Choices, that their lawful enterprise strike could be stopped.

Where the employer has a contractor affected, who then applies as a third party to stop the protected action, then the right to strike can be frustrated.

Tracey is astounded that, as industrial relations minister, Gillard still has the power to stop a strike.

Tracey meets many women like her in her industry. She joins the union organising on a national industry basis. She is shocked to find that the FWB retained the Work Choices bans on pattern or industry-wide bargaining industrial action.

Tracey does not have the freedom to bargain for her collective interests in her industry and, as a last resort, the right to take industrial action. The FWB's fundamentalist approach of only allowing enterprise "protected action" retains one of the worst anti-union regimes in the world, far below ILO standards.

Tracey heard Prime Minister Kevin Rudd and all the ALP MPs championed ILO minimum standards when in opposition and criticised Work Choices for being in breach of those standards. But in government Rudd's FWB flouts its ILO obligations.

Tracey agreed with the ACTU advertisement against the Liberals/Nationals. She is angry with the same Liberal lies being peddled — the endlessly recycled Peter-Reith-big-lie that unfair dismissal laws creates unemployment! Tracey is disgusted at former treasurer Peter Costello's anti-union rants.

Tracey is scared of job and hours cutbacks and wage reductions as Australia spirals into a longer recession. Tracey believes it is common sense that enhancing workers' rights with improvements to the FWB and delivering on wage increases and boosting demand is the better strategy for economic stimulation.

Tracey knows that Work Choices has not been repealed yet, a promise that is long overdue. She wants the FWB to be passed. Some workers will have new rights. "Fairness" is back.

Tracey knows the ACTU and unions proposed significant amendments to the FWB in the Senate submissions but these were largely ignored by parliament. (See ).

Is this fairness Tracey can believe in?

When Tracey learns of all of the FWB shortfalls, she thinks it is like still living in a Work Choices 1984-world, but with a new spin: "It's all ok. Fairness is back."

She feels as if she is just an appendage of whatever the corporations want.

An ALP MP tells Tracey: "You cannot get all the rights you want. The FWB is balanced, as employers have to be protected in this capitalist crisis. Your concerns are unfinished business after the next election." She sees this as the sell-out of the Your Rights at Work campaign.

Although pessimistic, Tracey has hope unions will press her rights at work — needed even more in this great global capitalist recession.

[Chris White is the former Secretary of the United Trades and Labour Council of SA. His blog is on labour rights, the capitalist crisis, and China's labour laws.]

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