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Issue # 1418      8 July 2009

New IR laws: Anti-worker, anti-union
content remains

Fair Work Australia (FWA) in name, but still very much WorkChoices in content. The Rudd-Gillard government’s legislation falls far short of restoring basic democratic and trade union rights to Australian workers. The right to take industrial action remains virtually outlawed; awards remain stripped and very limited in content; and the political building industry police force with its coercive interrogation powers remains on the prowl, albeit dressed in new robes.

Workplace Relations Minister Julia Gillard told the ACTU Congress last month that as of July 1, “this nation is due to finally bury WorkChoices and bring to life Labor’s Fair Work system” that “we will be able to proudly say to each other we have cleansed the stain of WorkChoices from the history of modern Australia”.

Listening to the Minister, July 1, 2009, the date of commencement of the Fair Work Act should have been a day of celebration for a labour movement, burying the crippling anti-union laws and overcoming the massive setbacks under the Howard government’s WorkChoices regime. Instead, it leaves unions angry and disappointed and fails the working people of Australia.

FWA will see the phasing out of the Howard government’s individual employment contracts, the so-called Australian Workplace Agreement’s (AWAs). While that is an important reform it is not enough. Trade unions need also to have the necessary rights to collectively bargain and protect their members which FWA fails to deliver.

Labor’s new system of “good faith” bargaining remains to be tested in practice. Employers will be required to sit at the bargaining table, but not forced to reach agreement. Low paid workers in certain industries will have access to a FWA tribunal for arbitration when good faith bargaining fails to deliver an agreement.

FWA provides a “safety net” of ten legislated, minimum legally enforceable employment entitlements, a process for ongoing determination of minimum wages and a new system of “modern awards” as a fall-back position for workers not covered by enterprise agreements.

The Howard government savagely stripped awards back to the barest minimum conditions and froze those conditions to force workers into AWAs and enterprise agreements. Labor has no intention of restoring awards to their former comprehensive nature.

Under FWA trade unions are allowed to exist, and are allowed to participate but they are not afforded the key role and rights that they had prior to WorkChoices. They are not recognised as central to the relations between labour and capital, as in previous, pre-WorkChoices legislation.

For example, the Act promotes collective bargaining, but it does not promote, let alone guarantee, the role of trade unions in that bargaining. Trade unions are allowed to represent workers at the negotiating table if a majority of those to be covered by the agreement agree.

Trade union rights should be central to industrial relations legislation. As the ACTU Congress fact sheet on industrial relations legislation points out: “Unions provide the democratic organisation for working people to have a say in their workplace.” Without them individual workers are powerless.

FWA fails to restore a number of other previously held trade union rights necessary to recruit, represent, protect and organise members. Instead, employers still have considerable scope to shut unions out.

Unions remain kneecapped with prohibitions on industry-wide agreements, restrictions on right of entry, and the virtual outlawing of industrial action.

Pressing demands

A great deal of unfinished business remains to replace WorkChoices with laws and an industrial relations system that recognise and ensure basic trade union and democratic rights. The following are some of the key areas that require urgent legislative change:

Industrial action

The right to strike and to take any other form of industrial action is fundamental and should not be subjected to penalties or damages claims from employers. It is the ability to collectively withdraw labour that gives workers and unions their power. To deny that right, is to deny the right to trade unionism.

At present any industrial action taken during the life of an enterprise agreement is subject to penalties, regardless of the reasons for the action. Individual workers, trade union officials and unions face financial penalties and massive damages actions by employers, and union officials can still lose their right of entry permit.

Action around political and social demands, sympathy strikes, refusing to cross a picket line, action to force an employer to make a workplace safe or adhere to an agreement, action to defend a sacked worker or jobs, and solidarity actions all remain unlawful. Employers are still required to dock pay for any form of action, even when work does not actually cease.

Under FWA, the only action which is “protected”, meaning workers and unions cannot be sued for damages, is during the period when a new enterprise agreement is being negotiated. Even this right is extremely limited with a host of hoops to jump through and the possibility of it being cancelled at any point in time – especially if it is effective.

Secret ballots, involving long delays and notice to employers, are still required before taking “protected” industrial action. Employers can still challenge the ballot process and delay or prevent industrial action. These provisions should be abolished. Trade unions, through their own democratic processes, should determine when and what industrial action is taken. Timing is critical.

Collective bargaining

The right to collectively bargain is another fundamental right. Unions should be free to bargain at any level – across an industry, an occupation, with more than one employer as well as at the enterprise level. With a few exceptions, FWA limits collective bargaining to the enterprise level. Multi-employer agreements are permitted where no industrial action was taken in pursuit of the agreement.

FWA retains many of the Howard government restrictions on the content of agreements, such as limiting them to matters pertaining to the relationship between employers and employees and/or employers and unions. Other prohibitions relate to right of entry and waiving the qualifying period before unfair dismissal claims can be made.

The concept of a union agreement is wiped – something that even WorkChoices recognised. Under FWA, collective agreements are between employers and employees – unions may be covered by an agreement and become bound by it, but not party to it. Where a union has a member it is entitled to represent the member and be covered by the agreement. The door appears to be wide open to bogus company unions and non-union negotiations.

Awards and agreements

FWA restricts awards to 10 listed (what Howard called “allowable”) matters. It specifically prohibits awards from containing certain matters. Many workers covered by the new modern awards stand to lose existing conditions.

The award conditions can be breached by an employer in an agreement under a new “better off overall test” – this replaces the previous “no disadvantage test”.

Awards should be expanded to provide a comprehensive set of minimum wages and conditions that reflect underlying standards obtained in enterprise bargaining.

Right of entry

The Act does make some provisions for union officials to be able to hold discussions with employees, but there is no requirement on the employer to facilitate union access to the workplace. Employers retain the Howard government’s provision giving employers control over where the discussions are held.

The system of permits and the requirement to give 24 hours notice remains intact, which acts to exclude the union at the time of an accident or dispute arising.

Union officials can access a range of documents when investigating a suspected breach of the law but this access is still restricted to members’ records, unless a non-member gives consent or the FWA gives an order permitting them access.

Right of entry, access to employees and employee records are important rights that are vital to recruitment, organisation, enforcement of legal entitlements, and the waging of struggles.


The Australian Building and Construction Commission with its coercive interrogation and other repressive, anti-democratic powers should be abolished, not transferred to a special Inspectorate of FWA. Building workers are entitled to the same democratic rights as the rest of Australia. (See Guardian June 23, 2009 for more information on the ABCC.)

Workers’ entitlements

Legislation is needed to ensure that when companies go bust, employees are first in line as creditors for all of their outstanding entitlements. There is also a need to develop national or industry schemes for entitlements that accrue, such as long service leave. Employers should be paying for these on an ongoing basis, so that workers’ entitlements are protected.

Workers’ superannuation savings remain unprotected. There needs to be a national superannuation scheme that guarantees retirement savings, which invests in social projects such as public housing, renewable energy and other public infrastructure projects, health and education.

Workers in Australia face a tough period ahead with ongoing sackings, employer attacks on wages and working conditions, and a government that will be all out in the coming years to reduce budget deficits by cutting social spending.

Trade unions need to build, to become stronger, and develop their community and political activities. The ripping up of WorkChoices and restoration of basic trade union rights are a vital part of that process.

At the ACTU Congress, unions vowed to campaign for further rights. They adopted a set of priorities for ongoing reform and adopted a political and community plan to build on the strengths of the Your Rights at Work campaign that played a major role in the defeat of the Howard government.

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