- by Anna Pha
- The Guardian
- Issue #2033
Photo: Anna Pha
Labor’s Secure Jobs, Better Pay bill gives lie to its title. It fails to provide trade unions and the working class with the unfettered right to strike that is so critical to empowering them to secure better jobs and better pay without facing heavy penalties. It makes an already complex system even more complex and confusing – a picnic day for lawyers.
The bill was introduced to Parliament on 27th October and passed by the House of Representatives on 9th November with little time for analysis and discussion. The government was still drafting amendments when it was passed, and a Senate inquiry was still to report on 17th November.
As noted in last week’s Guardian the bill introduces new shackles for the trade union movement as well as some positive changes. (#2032, 8th November, 2022, “The ALP’s new IR laws: new avenues for action, new shackles”)
Any employer could drive a truck through the provisions claiming to improve job security. The bill limits fixed term contracts to two consecutive contracts or a maximum of two years in the same role, whichever is the shorter.
There is plenty of room for employers to avoid giving ongoing work if they do not want to. For example, they could impose a break between the first and second contracts or offer a contract that is less than two years and not renew it.
At present only 14.7 per cent of the workers are covered by an agreement that has not expired. The remainder of the workforce rely on inferior modern awards, expired agreements, left-over agreements from the Howard era, or virtually no protection at all.
The bill expands the scope of three existing but very limited multi-employer bargaining streams.
The first is “cooperative bargaining stream” which replaces the existing low-paid bargaining stream and is voluntary for both unions and employers. There is no right to industrial action. Unions and employers not already covered by an existing cooperative workplace agreement, could if they agree gain coverage or leave the agreement upon successful application to the Fair Work Commission (FWC).
The “supported bargaining stream” covers low-paid, highly feminised industries and government funded sectors. Unions covering these workers will be able to negotiate across similar workplaces. The FWC must first be convinced that the workers have a common interest such as aged care, disability care or early childhood education and care. It must also believe it is in the “public interest.” The FWC would be able to require third parties such as a government who has an interest in the outcome to take part in negotiations. It mainly applies to small workplaces and could involve single or multiple employers. Unions would have access to “protected action.”
The outcomes for many of these workers also depend on the extent of the government’s willingness to fund higher wages and better working conditions which no doubt the FWC will take into consideration.
The third stream is the “single interest” which involves multi-employer bargaining and agreements. However, they will have to convince the FWC that the employers have a “common interest”, are “fairly chosen,” and it is in the “public interest.” Unions will be able to initiate negotiations for agreements without employer agreement to negotiate.
These agreements could cover all workers on a site or in the same field of work. The processes around single interest bargaining are fraught with dangers for unions. There are hurdles to jump before bargaining can commence with the FWC required to give its approval. Once bargaining has commenced and prior to a ballot to take industrial action, conciliation sessions with the FWC are compulsory. If bargaining is viewed by the FWC to be intractable – no prospect of agreement – the FWC arbitrates.
Historically arbitration results in outcomes falling short of union demands. Employers know this and will only dig their heels in to ensure no agreement is possible.
Once a single interest or supported agreement has been approved by the FWC, the agreement may be varied to add additional or remove employers and their employees to their agreement.
Nevertheless, employer bodies are up in arms and campaigning against multi-employer bargaining. “This bill abandons enterprise bargaining, the key driver of productivity-based wages growth, in favour of compulsory multi-employer bargaining, reversing decades of tripartite consensus,” Australian Chamber of Commerce and Industry chief executive Andrew McKellar said.
“Productivity” is employer spin for profits, and “tripartite consensus” spin for class collaboration by unions. (See page three for background.)
The bill is not well written and it is not clear whether the possibility of non-union agreements is increased.
Unions that have “a history” of contravening the FWA over the previous eighteen months – breaching bad laws and protecting members’ interests – are excluded from multi-enterprise agreements. They are restricted to “single enterprise agreements.” This provision targets militant unions such as the construction and maritime unions that have fought for and won job security, better pay and conditions for their members.
Of great concern, in such circumstances, employees would be able to appoint alternative representatives including other trade unions. This opens the door to company unions and poaching by other unions, causing divisions within, and weakening the trade union movement.
The objectives of the FWA are amended to include “the promotion of job security and gender equity,” which the Fair Work Commission must consider when approving or arbitrating on agreements and setting minimum wages. Importantly, it removes the need for a comparable male-dominated industry which could benefit some feminised areas of work. Two specialist panels are set up to assist with these aims.
Sexual harassment is prohibited with the possibility of employers receiving a penalty of up to $13,320 (60 penalty units) if they fail to take “all reasonable steps” to prevent the sexual harassment from occurring.
The bill increases the cap on small claims under the Fair Work Act from $20,00 to $100,000 avoiding a costly full court process, a long overdue reform.
It will be unlawful to advertise a job at below the minimum wage rate – incredibly it is legal at present.
At the same time the FWC is given considerably more powers including compulsory arbitration in certain circumstances and the ability to vary agreements that have been reached between unions and employers.
Workplace Relations Minister Tony Burke has reassured employers that the bill will make it even more difficult to take industrial action. Amendments to the FWA require unions and employers to attend compulsory conciliation during the ballot period prior to approval for industrial action. There will be “greater flexibility” relieving employers of certain obligations to supply workers with copies of the proposed agreement and notifying them when and how a ballot to approve an agreement is to take place.
“These changes are intended to replace a rigid, rules-based approach to protecting employees’ rights to participate in collective bargaining with a more suitable, principles-based approach, without weakening the protections,” Burke said. More like employers’ rights.
Five days’ notice must be given prior to industrial action for single interest and supported bargaining streams and the length of a bargaining period is extended from thirty days to three months. Five days’ notice weakens unions tactically giving employers time to put measures in place to reduce the impact.
Arbitration can also take place if unions and employers agree or when employers do not come to the negotiating table within twenty-one days. Industrial action then becomes illegal.
Employers retain the right to lock out workers during a bargaining period, a right that does not exist in almost any other OECD country and which must be abolished.
ABCC & ROC
The bill abolishes the union-bashing Australian Building and Construction Commission (ABCC) while clobbering the construction union on the head by prohibiting multi-employer bargaining in the industry. There may still be special provisions covering the industry. Existing court cases will be transferred from the ABCC to the Fair Work umbrella.
The Registered Organisations Commission is abolished in name only, with its functions and powers transferred to the General Manager of the Fair Work Commission. In essence it will remain to load unions with time-consuming and unnecessary bureaucracy.
“We’ll make the better off overall test (BOOT) simple, flexible and fair,” says Burke. The provisions weaken the test for approving enterprise agreements, with no guarantee that workers will be better off than on the bare minimum award.
The FWC is required to give primacy to the parties’ agreement. This opens the way for yellow unions doing deals with employers that undercut entitlements.
Despite some positive aspects, shackles on unions and workers remain. These will only be removed by united struggle on the ground. They will not be won from inside Parliament. The decline in trade union militancy is showing strong signs of turning around and with that will come larger memberships as workers once again see unions as protecting and fighting for their interests.
It’s time to break the shackles.
This bill is the first of two to come. The next one will cover such issues as wage theft, definition of casual, right of entry, road transport panel, and sham contracting. The campaign around these issues must start now.