Louise Walker
& Sue Bolton
Over the last few months, Howard's Coalition government has been lobbying big business about the dangers of the ALP's industrial relations policy giving trade unions "too much power". Labor workplace relations shadow minister Craig Emerson has responded by telling employers that the ALP's industrial relations changes won't give unions much in the way of extra power, while telling unions that they will have much increased rights.
On August 6, the NSW Labor Council's Workers Online website hailed the ALP's IR policy as "embracing collectivism", pointing to Labor's promise to ban Australian Workplace Agreements (AWAs), to increasing "the powers of the industrial umpire" and to "restoring awards and union access rights".
But is it accurate to describe Labor's IR policy as "embracing collectivism" when the foundation stone of the policy is a commitment to enterprise bargaining and wage-restraint?
Anyone who has been in the workplace since the 1970s and has lived through the period of the wage-cutting Prices and Incomes Accord of the 1980s and enterprise bargaining from the 1990s until now, will attest to the serious worsening of many aspects of working life. Longer hours, increased job insecurity, a massive increase in casual or contingent employment and the loss of conditions in return for minimal financial returns that are easily whittled away, are some of the hallmarks of the period.
One central mechanism for selling enterprise bargaining to the public as "fair" was the introduction of the "no disadvantage test". Broadly, this requires regulatory authorities to examine any agreement to ensure that the new conditions do not "disadvantage" the employee when compared to conditions of the previous agreement. Under enterprise bargaining, any proposed agreement that failed the "no disadvantage test" would not be allowed.
But a paper published by University of Melbourne law academics on August 20 argues that the "no disadvantage test" failed to adequately protect employees from deterioration in their terms and conditions of employment. They point to the implausibility of measuring many conditions in monetary terms. They reject the suggestion that enterprise bargaining can be described as deregulation, arguing instead that it should be called "de-centralisation" or "de-collectivisation".
Non-union agreements
There's no doubt that Labor would introduce some improvements to the present industrial relations system if it won government. Its undertaking to eradicate Australian Workplace Agreements (AWAs) is important, as they are specifically designed to undermine unions by allowing employment at less than the minimum collectively agreed wages and conditions available to others in the workplace.
While AWAs account for less than 3% of industrial agreements nationwide, they are now ubiquitous in some industries and workers in those industries stand to benefit from their removal.
However, a newly elected Labor government would allow AWAs to continue to operate until their nominated expiry date. This has encouraged employers who are big users of AWAs, such as Telstra, to put enormous pressure on employees to renew their AWAs before the federal election.
In response to criticism from federal workplace relations minister Kevin Andrews on ABC's August 10 Lateline program, Emerson reminded viewers that the abolition of AWAs doesn't prevent employers and employees from entering individual common law contracts.
Despite the ALP policy's stated commitment to "collectivism", the policy also clearly states that the ALP is committed to retaining non-union agreements as well as union agreements.
One of the worst aspects of non-union agreements is that workers who do not have access to union assistance have little opportunity to critically examine an employer's offer and are much less able to organise effectively to resist increased exploitation. Non-union agreements are used by employers to keep unions out of unorganised workplaces.
Emerson elaborated on this point in an article in the August 16 Australian Financial Review, when he stated that "Labor's policy is that employees should be able to be represented in negotiations by their chosen representative. There will be no union monopoly."
The commitment in the policy to restore awards is welcome. When the Coalition government introduced the Workplace Relations Act, it stripped awards back to the barebones of 20 allowable matters.
Labor's new policy states that it "will not limit the matters that can be included in awards". But in his August 16 AFR article. Emerson stated that "Labor began award simplification, and it will not support outmoded 500-page awards". He was also quoted in the July 22 AFR saying: "We will not be advocating increases in the number of matters that are included in awards."
Does that mean that a Latham-led Labor government would limit how much unions could improve awards?
The restoring of awards is probably not a big blow to employers because of the ALP's fundamental commitment to enterprise bargaining. It's unlikely that many unions will engage in big industrial campaigns to improve awards when the enterprise bargaining system prevents unions from engaging in industry-wide campaigns.
Job insecurity
One of the most beneficial changes that Labor is planning is the creation of an employer-funded scheme to guarantee 100% of employee entitlements. Businesses employing 20 or more people would be levied at a rate of 0.1% of their total payroll to fund the scheme, which would guarantee entitlements when businesses go bankrupt or get sold. This is a major victory for trade unions and workers who have campaigned on this issue.
But businesses with fewer than 20 employees won't be levied. Does this mean that these workers will not have their entitlements guaranteed? The policy doesn't answer this question.
Labor's policy notes that one in four workers are now employed as casuals and this is projected to rise to one in three workers by the end of this decade. It also notes that job insecurity is a significant health risk for workers aged over 40 years. It states that insecure employment more than doubles the risk of physical health problems and more than triples the rate of anxiety and depression.
According to Emerson's August 16 AFR article, a Latham government would "give regular, long-term casuals a reasonable right to request permanent work". However, he says that a federal Labor government would "not be legislating a one-size-fits-all approach" in order to protect the interests of small business.
Labor's IR policy is full of loopholes which leave small business employees with fewer rights and less protection than other workers. That's because the ALP doesn't want to undermine support for the idea that workers should only receive what each employer has the "capacity to pay" — a central tenet of enterprise bargaining.
Labor is offering to legislate to allow new parents to return to work part-time and the right to negotiate hours of work and rostering. The ACTU has heralded this as helping people balance work and family responsibilities. However, Labor has couched these provisions as being in the interests of employers, and has limited application of such requirements by the Australian Industrial Relations Commission (AIRC) to circumstances that are "reasonable", including limiting their application to larger businesses only.
In addition, the ALP is promising a "baby care" payment (funded by the taxpayer rather than the employer) of 14 weeks' pay at the federal minimum wage rate, but it makes no mention of increasing access to affordable child care. The lack of childcare is a major problem for many workers who would otherwise consider having children.
Restore collective bargaining?
Much has been made of Labor's claim that it will restore the right of workers to bargain collectively. The policy criticises the Howard government for allowing employers to refuse to negotiate with employees or their trade union, but it does not promise to abolish the Workplace Relations Act. Neither does it promise to abolish 91×ÔÅÄÂÛ̳ 127 and 166 of the WRA, which empower the AIRC to order unions to stop unprotected industrial action.
While the policy guarantees the right of unions to conduct meetings in "normal meeting places", it would not permit union meetings "at times that would disrupt operations", i.e., stop-work meetings.
Bargaining, negotiation and dispute resolution are the key activities that Labor expects unions to engage in. If unions were to follow the ALP model, they would all-but disappear from the workplace.
The building industry gets a special mention in the policy. While the ALP undertakes to abolish the discredited Building Industry Task Force, it repeats the Coalition's assertion that the building industry requires "cultural change".
Labor is offering to building employers the same broad outcomes as promised by the Howard government through the task force — the shackling of relatively well-organised and militant unions. But the means proposed by Labor are different — a tripartite national forum of employers, unions and government. If Labor is successful in reducing the demands of building unions, the entire Australian work force will be weakened industrially, and ultimately will suffer a significant loss of wages and conditions.
There are two areas where the ALP policy is silent. It does not mention the possibility of introducing industrial manslaughter legislation, a key issue around which the building unions have been campaigning for years.
It is also silent about pattern bargaining, which has been used by the more effective unions to coordinate industrial action and improve the parity of wages and conditions across an industry. Will a future Labor government support pattern bargaining, or join the employers in attacking unions which use pattern bargaining?
The ALP has also retreated from a commitment which it made at its January national conference to repeal 91×ÔÅÄÂÛ̳ 45D and E of the Trade Practices Act that ban secondary boycott action.
After criticism from employers and the Howard government, the ALP backtracked on their commitment and the policy states that "Labor opposes secondary boycott activity and businesses will retain protection from boycott action".
The ban on secondary boycotts is particularly restrictive for unions because it prevents unions from organising workers who work in one part of a corporation from taking action in solidarity with workers who are in dispute with another part of the company.
The verdict: The ALP's industrial relations policy is an improvement over that of the Howard government, but it still weights the system toward the bosses and against workers and their unions.
[Louise Walker and Sue Bolton are national trade union co-conveners for the Socialist Alliance.]
From 91×ÔÅÄÂÛ̳ Weekly, September 15, 2004.
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