Workers' rights need to improve
By Brian Boyd, VTHC Secretary, Tuesday 17 August 2010
The International Labour Organisation (ILO) released a report from its Committee on Freedom of Association in June. This comes off the back of its most recent comprehensive report in March 2010, that covered all labour conventions.
The ILO - FOA Committee when dealing with Australia, targeted the 2009 Rudd/Gillard Government’s new Fair Work Act, asking it to review “restrictions” on multi-employer bargaining. The report said these restricitons breach Australia’s international obligations.
Under the Right to Organise and Collective Bargaining Convention bargaining can occur at an enterprise or industry level, with it is being a matter for unions and employers to decide on, not legislation.
The ILO - FOA Committee specifically stated that the Fair Work Act, in its current form, “could adversely affect the right of organisations to seek and negotiate multi-employer agreements, as well as unduly restrict the right to strike”. The federal government has been asked to review these restrictions and make changes via consultation with Australian unions and employer groups.
The Committee also reminded the federal government that ILO standards allow workers to have the right to strike, not just over industrial matters, but also economic and social issues. The federal government was asked again to revise the Fair Work Act “where appropriate”. (Currently Australian workers have a very limited right to industrial action, that is only when given FWA permission to act and only over establishing wages and conditions in a new agreement).
The June report also asked for updates on how “individual flexibility arrangements” in the Fair Work Act were operating, as these could threaten unions’ bargaining status, how ballots are conducted, what is contained in agreements and the right of entry of unions.
Back In February 2010 the AFR Journalist Mark Sculley made the following observations:
“The Work Choices laws were, in fact, incredibly complex and were a massive re-regulation of the workplace rather than a move to free-market principles. They aimed to cover all the bases for limiting union involvement and intervention. Workplace Relations Minister Julia Gillard deserves some credit for simplifying the system but has retained much of the underlying legal content, while scrapping Australian workplace agreements and broadening the scope for unfair dismissal claims.
“The recent strikes by construction workers on Woodside Petroleum’s $12 billion liquefied natural gas project were illegal and harmful to the national economy. But the law covering illegal strikes is much the same as it was under the Howard government.” (Emphasis added).
Back in the first week of the federal election campaign (late July) Tony Abbott tried to unload his “WorkChoices” baggage by claiming, if elected, he would leave the IR laws untouched.
Some big business leaders came out in support. Even the Australian Financial Review led with a headline: “Business backs Abbott’s IR truce, ”(28/7/10). The article said in part: “business isn’t worried about Mr Abbott’s promise not to change Labor’s Fair Work Act…”
This shouldn’t be a surprise because, despite some ritual bleating about the Fair Work Act being pro-union, the employers know the core aim of WorkChoices – to stop organised labour from exercising full workplace rights – is still in force.
For example the Fair Work Ombudsman (FWO), that sits alongside Fair Work Australia (FWA), can unleash phenomenal powers in dealing with a whole range of industrial matters. Recently the FWO intervened in proceedings before the FWA as an “enforcer”. It attacked the AEU for even contemplating a ‘work ban’ five months out from it even being implemented over the NAPLAN (league tables) dispute! Individual teachers, as well as the union, were threatened with heavy fines.
The FWO has wide investigative powers eg demand entry to an employer’s premises, seek production of any document and compulsory interview “witnesses”. It is important to call a spade a spade.
Another journalist, Kenneth Davidson of the Melbourne Age, made the following observations (26.7.10):
“The main difference between WorkChoices and Gillard’s Fair Work Act is largely cosmetic. Abbott wants to destroy the trade unions. Gillard is happy to recognise the unions but make them largely impotent.
“The constitutional spine of the act is the same as WorkChoices. The constitutional authority for WorkChoices was the corporations power (alone) which ignored section 51 (xxxv) of the constitution. Then High Court justice Michael Kirby found the WorkChoices legislation unconstitutional in his 2006 minority judgement because the legislation effectively ruled out the guaranteed independent procedures of “conciliation and arbitration” required by the section 51 provisions. Kirby said the High Court’s adherence to section 51 (xxxv) for more than a century provided a constitutional guarantee limiting the deployment of government powers in industrial relations.”
“Gillard is riding a tiger. She knows the ACTU has to publicly support her to avoid the Abbott alternative, even though individual union leaders privately feel betrayed.
Gillard is also confident that employer groups, which consulted privately with her and Kevin Rudd over the act during the 2007 election, are privately happy with it” (emphasis added).
While not necessarily accepting all of Davidson’s negative tones, it is important to appreciate the broader, true characterisation of the Fair Work Act.
Then of course there is the ongoing draconian operations of the ABCC. Rank and filer Ark Tribe is back in court on the 13th September next and his fate will trigger ongoing analysis of the specialist laws targeting the nation’s building industry.
An ironic illustration of the ongoing ‘WorkChoices’ contamination of the Fair Work Act is the ACTU’s correct claim during the federal election campaign that there are almost 200 ways the current legislation can be altered, changed, watered down through regulation and the use of ministerial direction.
Tony Abbott can make his tongue in –cheek pledge about not intending to make legislative changes to the Fair Work Act – because he doesn’t have to.
The reactionary HR Nicholls Society argues the same point, calling on their employer backers to exploit the WorkChoices – type IED’s left in the Rudd-Gillard IR laws.
The ACTU’s short-term pre-election point scorer remains an ongoing post –election problem for the union movement.
It is important organised labour campaign to finally dispel the myth that WorkChoices is dead and secondly win the deserved further improvements to Australia’s IR laws – unfinished business from the 2005-2007 campaign.
After the 21st August this should be key focus.
17.8.10
