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Issue # 1403      18 March 2009

Fair Work Bill

A new look but WorkChoices at the core

The Rudd Labor government had a battle on its hands last week attempting to get its Fair Work Bill through the Senate. As the debate resumed this week, negotiations were continuing with independent and Greens Senators. The Coalition was still clinging to its WorkChoices legislation that the new bill replaces. The bill falls far short of the expectations of the trade unions and the millions of Australians that campaigned so hard for the defeat of the Howard government. The Australian Greens stood out as the only force in Parliament taking a principled stand in defence of workers and trade unions.

“Overall, the bill is an improvement on WorkChoices”, Greens Senator Rachel Siewert told the Senate in damning faint praise. “Quite frankly, how could it not be? The evidence on WorkChoices is clear: it ripped away workers’ rights, was used by employers to exploit workers by removing pay and conditions and was explicitly anti-union and anti-collective action.”

Senator Siewert said the government has a mandate to provide a fairer system; but that fairer system was not there yet. “It builds on the WorkChoices architecture, with the use of the corporations power, retains the current severe restrictions on taking industrial action, provides for a downgraded awards system, incorporates the idea that some workers should have more rights than others and cannot quite shake off individual agreements.”

As the Greens point out, the bill does not rip up WorkChoices but builds on its basic architecture. The main thrust of WorkChoices’ anti-union, anti-worker provisions remain intact. These provisions are designed to prevent trade unions from recruiting, organising and representing workers, and taking industrial action.

They also have the aim of stripping back hard won wages and conditions through non-union agreements and individual contracts. The bill does little to change these provisions which not only ripped unions of much of their collective power but saw many workers lose important working conditions, have their wages slashed and job security jeopardised.

Fails mandate

The bill fails to meet the mandate of the people. There is considerable disappointment and even anger in some trade union quarters over the bill’s failure to reinstate the role and rights of trade unions as hoped for when Labor was elected. As a very minimum the legislation should:

  • provide for a system of industry-wide collective agreements and awards negotiated by unions, with no restrictions on pattern bargaining or agreed content. These should cover all workers in an industry;
  • removal of capacity for non-union bargaining and no-union agreements;
  • abolition of individual employment contracts (AWAs and non-statutory contracts);
  • the right to strike at any time around industrial and political issues and in solidarity with other workers;
  • trade unions to have right of entry to workplaces to recruit, organise, represent and protect workers;
  • legislated minimum conditions that apply to all workers;
  • bring all workers under the same umbrella, on a non-discriminatory basis.

The bill also fails to abolish the Australian Building and Construction Commission (ABCC), the secretive police force that sneaks around building and construction sites, spying on and interrogating workers. It has powers that breach basic democratic rights and international law, that give workers less rights than accused murderers. It spends millions of dollars a year intimidating and hounding individual workers, union officials and their unions in the courts as if they were criminals or terrorists. Their “crime” is legitimate trade union business, organising, recruiting and defending workers’ wages and conditions and their health and safety in the workplace.

Phoney opposition

The Coalition, backed by major employer groups, attempted to whip up fear in the community that the bill would cost jobs and turn the union movement into a non-statutory police inspectorate transgressing the privacy and rights of employees. Family First Senator Stephen Fielding has lined up with the Liberals, playing a very obstructive role and showing more concern for corporate profits than workers and their families.

The Coalition is pushing for the 12-month exemption from unfair dismissal laws to apply to businesses with up to the equivalent of 25 full-time employees – the bill states 15. Fielding is asking for an increase to 20. Under WorkChoices it was 50. Whichever number is agreed on does not address the overall inadequacy of the overall unfair dismissal provisions. The bill should not be granting any 12-month exemptions.

The claims that the unfair dismissal laws would act as a disincentive to employers taking on workers are pure mythology. There is only one reason behind the opposition to unfair dismissal laws – employers want the right to arbitrarily hire and fire without any regard to any restrictions or notion of justice.

The Coalition and Senator Fielding oppose provisions giving trade unions the right to inspect employment records of non-union members where there is a suspected breach legal requirements. This is a longstanding and important right, which WorkChoices removed.

Independent Senator Nick Xenaphon has similar objections to the Coalition and Fielding, as well as objections to provisions that might (although that is questionable) give outworkers better protection.

In negotiations last week, Industrial Relations Minister Julia Gillard focused on gaining support from the Greens and two independents. If successful, that would leave the Coalition neatly labelled as still “pro-WorkChoices” at the next elections and fuel the deep divisions within Liberal ranks over the legislation.

Liberal leader Malcolm Turnbull has so far sat on the fence, attacking the bill, but making no commitment as to how they will vote. Turnbull and his shadow industrial relations minister Joe Hockey have previously declared WorkChoices as “dead”, claiming to respect the mandate Labor received in the elections. Turnbull understands the political damage that blocking the bill could do in the electorate, but also the problems it could create with the likes of Peter Costello calling for the Coalition vote against the bill.

The Greens have put forward amendments to:

  • provide Fair Work Australia which replaces the Industrial Relations Commission with broader powers to resolve workplace disputes [the bill only provides for compulsory arbitration as a measure of last resort in limited circumstances – AP];
  • allow employees and employers to bargain over any matters agreed upon by both parties – at present the contents are limited to direct relations between employers and employees in the workplace;
  • ensure unfair dismissal protections are accessible to all workers fairly;
  • provide further protections for Individual Flexibility Arrangements in awards so they cannot be used to exploit workers like Australian Workplace Agreements were used;
  • urge the government to submit the legislation to the International Labour Organisation for advice as to whether it meets Australia’s international obligations;
  • provide Fair Work Australia (FWA) with the power to prohibit employees being made redundant where FWA considers executives are being excessively remunerated;
  • 26-week, government-funded paid leave scheme for both new mothers and fathers;
  • fund employment law services.

These amendments are worth supporting, but being amendments they fall far short of what is required and expected in terms of reinstating the primary role of unions, extending collective bargaining and the determination of wages and conditions beyond individual workplaces and reinstating the right to take industrial action.

The trade union movement and the Your Rights at Work Committees still have a great deal of work to do yet, before the trade union movement and community can be satisfied that Labor has delivered on its promise of ripping up WorkChoices. The Greens are the only voice in Parliament for the movement who should be supported and encouraged to keep fighting there on crucial question.

(See Guardian December 3, 2008, Issue No. 1393 for details of bill.)



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