Work Choices: a huge challenge for organised labour in Australia

By Graham Matthews

Work Choices is the Orwellian name given by the Australian federal Liberal-National (conservative) Coalition government to its second wave of industrial relations legislation, passed through parliament on December 2, 2005, and proclaimed as law on March 27.

Work Choices is an amendment to the Workplace Relations Act, a package of industrial “reforms” passed by the Coalition government in 1996, aimed at restricting workers' rights and weakening the power of unions in fighting for the interests of their members. It is part of the ongoing neo-liberal offensive by Australian governments – Labor and Liberal – over the last twenty-five years, aimed at increasing profitability by lowering the cost of labour across the board.

The Coalition's attack on the rights of organised labour took advantage of the weakening of the movement after thirteen years of Labor government. The centrepiece of the Hawke/Keating government's rule was the Prices and Incomes Accord, which bound unions to a centralised wage-fixing system, which reduced real incomes for workers by between seventeen and twenty-eight per cent over the life of the Labor government. Unions, such as the Builders Labourers Federation and Australian Federation of Air Pilots, that attempted to negotiate outcomes with employers outside Accord guidelines were mercilessly smashed. Delegate and activist structures in most unions were gutted, as the role of union delegates became enforcers of the deal, rather than advocates of struggle in many cases.

The proportion of the work force covered by unions also declined under the Labor government, falling from fifty-one per cent in 1981 to thirty-one per cent nationally by 1996. This had fallen to 22.4 per cent in 2005. For private sector employees, the rate declined from thirty-one per cent in 1990 to twenty-four per cent in 1996. The Labor government also began the deregulation of the labour market, with the introduction of enterprise bargaining in 1990.

The cumulative result of the “reforms'' to the labour movement under the Hawke/Keating government was to weaken the trade union movement significantly. It was this weakened trade union movement that confronted the Coalition in 1996.

The Workplace Relations Act (WRA) of 1996 stripped back allowable matters in industrial awards (minimum provisions for wages and conditions covering workers in a particular industry, set by the Australian Industrial Relations Commission [airc]) to twenty. It restricted the right of union officials to enter workplaces, and introduced Australian Workplace Agreements (AWAs – individual employment contracts that could override enterprise or award agreements). The only stipulation was that the awas were required to satisfy a “no general disadvantage test'', whereby a worker who signed an agreement would not be made worse-off overall than if still covered by the award. The wra also introduced a range of fines that could be levied on unions that defied airc orders.

The wra was a compromise for the John Howard-led Coalition government, which had been forced to omit some parts of the legislation in order to have it pass the Senate. Subsequent Coalition attempts to amend the legislation to close loopholes were blocked in the upper house.

Under the wra regime, significant sections of the trade union movement were able to rebuild and strengthen. The 1998 Patrick dispute, in which Patrick Stevedores attempted to sack its unionised work force, and replace them with scabs, was defeated by a broad mobilisation of unionists and the community, particularly in Melbourne and Perth. These two cities became the centre of a developing militant current within the trade union movement, which in subsequent years won leadership of strategically significant unions including the Australian Manufacturing Workers Union (AMWU) in Victoria and the Maritime Union of Australia (MUA) in Western Australia.

Work Choices

During its campaign for re-election in November 2004, the Coalition government did not highlight its plans for a “second wave'' of industrial relations legislation. It fought the campaign mainly on the promise of keeping interests rates low, mixed with a fear campaign centred on its ongoing support for the US-led “war on terror''. It was only after the election, in which the Coalition received the unexpected windfall of control of both houses of parliament – meaning that it could pass any legislation unamended – that it began to talk up the need for further industrial “reform''.

Work Choices is a significant attack on the rights of both individual workers and unions. For individuals, the legislation removes the right of workers in firms with fewer than 100 employees to seek redress for unfair dismissal. In firms of more than 100 employees, the right remains, but an employer can still circumvent the protection by claiming that sackings were made for “operational reasons''.

A further attack on the rights of individual workers is Work Choices' liberalisation of the rules that govern employers offering workers awas. Under the previous system, any AWA had to meet the “no general disadvantage'' test. Under Work Choices, this provision was dropped. Now the only stipulation is that the agreement meets a set of five minimum conditions—the federal minimum wage, an average work week of thirty-eight hours, ten days' sick or carer's leave per year, four weeks' annual holiday (although a worker can be pressured to “cash out'' two weeks of this) and the right to twelve months' unpaid parental leave on the birth of a child. Payment of penalties (extra payments above the base hourly rate) for working weekends, overtime or unsociable shifts, along with a host of other conditions that Australian workers have won through struggle, may be lost at the stroke of a pen.

Theoretically, the signing of an AWA remains voluntary, and no worker may legally be sacked for refusing to sign one. However, workers employed in firms of fewer than 100 employees have little recourse, while a new employee of any firm can be required to sign an individual contract as a condition of employment.

Low-paid workers will suffer even more severely under Work Choices. Until 2005, the federal minimum wage was set annually by the airc after hearing a submission from unions (the Australian Council of Trade Unions (ACTU), the peak body for unions in Australia), government, employers, charities and other interested parties. Over the last ten years, the airc has made determinations that have seen a steady (but slow) increase in the real value of the minimum wage. The airc has rejected the link between a rising minimum wage and increased unemployment.

With the introduction of Work Choices, the airc lost its power to set the minimum wage, and the power was transferred to the so-called Australian Fair Pay Commission. The afpc will be staffed by economics “experts'' whose brief is to measure the impact of any increase of the minimum wage against productivity and the impact on unemployment. It does not need to take account of union or community submissions in making its determination. Prior to releasing its first minimum wage determination, it has already released studies that argue that increases in the minimum wage increase unemployment. It is therefore likely to allow only a small increase to the minimum wage, further decreasing the spending power of the lowest paid workers.

The impact of Work Choices on unions

The Howard government wants to use Work Choices as a weapon to severely weaken the effectiveness of unions in being able to fight for the wages and conditions of their members. It has been described as the most serious attack on organised labour in Australia in 100 years. While Work Choices does not make it illegal to join a union, it attempts to make unions so powerless as to make membership almost meaningless.

Unions can still negotiate an agreement on behalf of members under Work Choices, but not non-members. Non-members cannot join strike action to support a union-negotiated agreement (to do so would make the strike illegal), or even vote for it. Conversely, any employee can vote for, or strike to support, a non-union collective agreement.

Industrial action remains legal during a recognised bargaining period for a new collective agreement. However, a bargaining period – which begins when the term of a collective agreement expires – can be suspended or terminated by the federal minister for industrial relations, or by the airc, or through legal action by an affected third party. The reasons for suspending or terminating a bargaining period include “significant damage to the economy'' and pattern bargaining (where common conditions are being sought in two or more agreements by a union, using a similar “course of conduct'', such as strikes).

For strike action to be legal, it has to be voted for in a secret ballot of union members run by the Australian Electoral Commission (AEC – the government body that runs federal elections). This can take up to twenty-one days to organise and can be by postal ballot – giving the employer time to wear down the solidarity and strength of the union members. The union must also pay twenty per cent of the cost of the ballot. By contrast, to stage a lock-out, an employer is required only to give employees three days' notice. No aec ballot is required.

Unions' right of entry into a workplace is severely restricted. The government, not workers themselves, decides which union officials are “fit and proper'' to represent workers. An employer can tell union officials where they can and cannot go in a workplace, and where to meet the union members, enabling the boss to hide unsafe areas from the union officials, or even to schedule union meetings in particular areas close to management, so as to intimidate workers.

A union official must give an employer twenty-four hours' notice before entering a workplace, potentially allowing a boss to clean up an accident site before inspection, as well as a detailed reason for entering a workplace, ending any confidentiality between a union member and union representative.

Unions can also be fined A$33,000 for seeking to include “prohibited content'' in a collective agreement. Speaking at the actu-organised demonstration against Work Choices on November 15, 2005, ACTU secretary Greg Combet explained, “It will be illegal to ask for workers to be protected against unfair dismissal when negotiating an agreement --and there's a $33,000 fine just for asking. And there will be a $33,000 fine for asking for union involvement in a disputes settlement procedure. And a $33,000 fine for asking for anything else the government might like to ban.'' Under the legislation, the minister can add to what is considered “prohibited content'' at any time.

Other legislation

The Work Choices legislation is the flagship in the Howard government’s campaign to weaken unions and atomise workers. Its provisions may be applied to all workers employed by corporations, through the government using its powers under the federal constitution. While most state governments (currently all Labor) have legislated to exempt state government employees (public servants, teachers, nurses and so on) from Work Choices, this exemption is under threat from the federal government’s intention to abolish the state industrial relations systems.

While Work Choices is therefore the most far-reaching part of the Howard government’s industrial relations package, it is not the most draconian. The biggest attacks on unions to date have been delivered by the Building Construction Industry Improvement Act, which was enacted in September 2005.

The bcii Act legislated many of the recommendations of the Royal Commission into the Building and Construction Industry—a heavily politicised inquiry led by Terry Cole into the building industry designed to prepare the way for legislative attacks on the Construction, Forestry, Mining and Energy Union (cfmeu) under the banner of fighting corruption in the construction industry.

The bcii Act brought into being a new industrial police force for the construction industry, the Australian Building Construction Commission. Under the legislation, the abcc has the power to interrogate individual workers in secret session. Refusal to attend such a session, refusal to answer any questions or discussing the proceedings of the session with anyone can lead to a worker being held in contempt. The penalty for contempt is six months’ jail.

The legislation gives the abcc the power to prosecute any worker in the building industry (or who supplies the building industry, such as maritime workers or transport workers) for any unlawful industrial action. As action is considered lawful only if it has the written agreement of an employer, is the result of an immediate health and safety breach (with the onus on the union to prove this) or has been agreed by secret ballot, almost any action taken can be construed to be unlawful. The fines the abcc can levy are up to A$22,000 for individual workers or A$100,000 for a union. The abcc can also sue unions for “damages” caused by industrial action, and additional penalties under Work Choices for unlawful industrial action can also be applied.

The bcii Act also contains provisions which allow the abcc to take legal action against bosses who are considered too union-friendly. Paying strike pay to workers, for instance, attracts penalties under the act.

The first prosecution carried out by the abcc is against 107 members of the cfmeu in Western Australia who took strike action in February, when their employer, Leighton Kumagai, sacked a job delegate. The abcc investigated the dispute at its own behest and issued 107 of the workers involved with writs for A$22,000 fines for illegal strike action in June, a full four months after the strike ended. Eighty-two of those charged face a further A$6600 in fines under Work Choices provisions.

The scope of the attack on building workers’ rights is almost unlimited. In July, forty metalworkers employed by Total Corrosion Control (tcc), a contractor engaged by alcoa to erect scaffolding in Pinjarra, Western Australia, were served with writs for fines totalling A$28,600 each for holding a union meeting that went fifteen minutes over the scheduled time. Their union, the amwu, was threatened with fines of A$110,000 plus unspecified damages.

On September 21, tcc withdrew all legal action against the forty workers. amwu organiser Will Tracey told Green Left Weekly that tcc backed down for four interrelated reasons: its own legal advice; the collective strength and discipline of the tcc Forty; growing support for the workers in their industry and the wider community; and the company’s realisation that it was carrying all the risk in a campaign that might not serve its short-term interests.

The attacks on workers in the building industry are a threat to all workers. As John Robertson, secretary of Unions nsw noted in speaking to a Sydney solidarity rally with the 107 West Australian workers on August 29, “[Former industrial relations minister Tony] Abbott made no secret in wanting the [building industry] laws to apply to all workers”. There can be little doubt that a re-elected Howard government would move quickly to extend the more draconian provisions of the bcii Act to workers as a whole, particularly if there is little real resistance to the implementation of the laws in the building industry.

Selling Work Choices

Support for Work Choices has been very strong from big business. Peak employer groups such as the Australian Chamber of Commerce and Industry have been outspoken in their support for the “reforms”. However, they are eager for the Howard government to press further, in areas such as the complete abolition of employees’ right to redress for unfair dismissal, and for the “right” of employees to cash out their entire four weeks’ annual leave. Speaking to the politically conservative industrial lobby, the hr Nicholls Society, in March, federal finance minister Nick Minchin revealed that the government was likely to seek a mandate for a further round of attacks on workers’ rights at the next election.

Work Choices remains deeply unpopular with working people, however. The Howard government has attempted to sell the package with a myriad of assurances that it is necessary to the future prosperity of the country and that the law protects basic conditions. The government also spent A$45.7 million of taxpayers’ money to sell the changes, with radio, television and newspaper ads combined with the printing of a glossy brochure, all trying to convince the voting public that everything is all right.

Poll after poll shows that people continue to be suspicious of Work Choices. Polls taken after June and November 2005 union and community protests against Work Choices registered the largest rebuff for the government. The Labor Party has also felt the pressure, to the extent that the federal opposition has been forced to commit itself to “tearing up” the laws if elected, abolishing awas, repealing the bcii Act and abolishing the abcc—key demands of the union movement.

Union campaign

The trade union campaign against Work Choices began in 2005. The first initiative was taken by a mass meeting of delegates held by the Victorian Trades Hall Council (vthc) on March 23, which called for a state-wide stoppage and mass protest for June 30 that year, the day before the Coalition gained control of the Senate. In spite of initial opposition from state labour council secretaries elsewhere, the actu agreed to a national week of action against the legislation, to run from June 27 to July 3.

Following on a concerted campaign of pressure mounted by militant unionists, all state labour councils eventually joined in calling mass protests, with all except New South Wales organising protest action on June 30. Unions nsw organised a series of televised “Sky Channel” meetings at more than 200 locations across the state on July 1. Nationally, more than 300,000 workers rallied against Work Choices over the two days, largely in defiance of legal restrictions on the right to stop work.

On June 11, 2005, a fight-back conference was organised by Socialist Alliance (an umbrella formation taking in sections of the Australian left) in conjunction with militant unionists at Trades Hall in Melbourne. Attended by more than 350 militants, the conference assisted in the establishing of a national network of militants, committed to a concerted campaign to defeat Work Choices.

The latter half of 2005 saw a series of calls for a renewed round of national stoppages and protests against the legislation, led by militant sections of the movement. The actu called a further national day of action against the legislation for November 15. Across the country, an estimated 600,000 workers participated in rallies, the largest workers’ rally in Australian history. The largest mobilisation took place in Melbourne, where up to 250,000 workers and their supporters participated.

From the beginning of 2006, the actu campaign against Work Choices emphasised political action—particularly a campaign to convince voters in marginal Liberal-held seats not to re-elect the Coalition at the next election, due towards the end of 2007. The February 21 meeting of the actu’s industrial relations campaign committee rejected a call for a mass protest in the first half of 2006, with only the vthc, the amwu and the cfmeu supporting such a call. After weeks of debate, and sustained pressure from militant unionists, on March 7 the actu executive relented and did call for a national day of protest on June 28.

The June 28 protests saw 300,000 workers mobilise against Work Choices across the country. While these were significantly smaller than the November 15 rallies of 2005, part of the difference was accounted for by the fact that Work Choices had been made law, giving bosses the big stick of A$6600 fines to wave over workers’ heads, along with the fact that less work was put into the mobilisations by many trades and labour councils. In Sydney, where 20,000 mobilised— significantly down on the numbers of November 15—the rally was held in Blacktown, in the heart of the western suburbs, preventing many workers from attending. The reason for the choice of venue was to stage the rally in the heart of the marginal Liberal-held seat of Greenway.

The actu’s next planned action against Work Choices took place on November 30. Speaking to Green Left Weekly, Australia’s most popular socialist newspaper, after the June 28 protest, many militant union leaders called on the actu to ensure that the protest was accompanied by a strike, to send the message to all workers that they should attend, and to ensure that “the actu doesn’t lose focus on what this campaign’s about”, as Western Australian assistant state secretary of the mua, Ian Bray, told Green Left Weekly on June 29. “This is not an election campaign for the Labor Party; it’s about fighting for the very existence of our pay and conditions now under threat”, he said.

Industrial action can stop Howard

On August 1, 100 workers at Amcor Flexible’s factory in Melbourne voted to strike against their employer for its attempt to sack five union activists, including two union delegates. The workers defied a return-to-work order issued by the airc on August 3 and reaffirmed on August 5.

The workers received great solidarity from other amwu members and also from the community at large. The company wrote to all striking workers, saying that they were all liable to A$6600 fines, and threatening a further A$22,000. The workers held fast to their strike and picket of the factory, however, in spite of further orders from the Federal Court demanding that officials recommend a return to work, and the company unsuccessfully sending a van load of hired thugs to break up the picket on August 15.

On August 16, the company relented and agreed to drop all charges against workers and their union, and to decide the fate of the five sacked workers through arbitration. The workers have hailed this result as a victory and a black eye for Howard. The victory shows clearly that concerted industrial action backed by community solidarity can make the new laws inoperable.

A similar victory against threats of intimidation was won by workers at Hawker de Havilland, a subsidiary of Boeing, in Melbourne on August 24. Workers there had taken strike action on August 17 in defence of three delegates sacked by the company for supposedly claiming overtime payments to which they were not entitled.

Workers at the plant maintained their strike, in spite of return-to-work orders obtained by the company and the placing of orders against union officials, which prevented their attending picket lines. As amwu organiser Victor Jose explained to Green Left Weekly, “For five days, the protest was handled, maintained and organised through the workers alone, without officials or delegates there”. The victory “certainly wasn’t because of the efforts of the union officials”, he added. “It was just the tremendous efforts of the workers collectively and the support they got from the community.”

A third victory against Work Choices was won by seafarers. In July, thirty-six seafarers on mt Stolt Australia went on strike and occupied their ship to stop the owner from taking it to the Cayman Islands and replacing them with lower paid workers. The workers’ action and community solidarity with the workers, combined with a protest outside the Melbourne offices of the owner Stolt nyk, forced a backdown by management and preserved the workers’ jobs.

In all three cases, the preparedness of the workers to take industrial action and to defy return-to-work orders from the airc and Federal Court laid the basis for the win. Community solidarity organised with the workers helped bring the bosses to the table.

In all three cases, the employer withdrew pending legal action against the workers as part of the settlement of the dispute, striking significant blows against Howard’s Work Choices regime. The battle in all three cases may not yet be over, however, with the Office of Workplace Services, a new section of the Department of Industrial Relations established by Work Choices, empowered to make its own inquiries and lay charges independently should it so choose. Nevertheless, the example that defiance brings victory is a telling one.

There is a great deal of ferment in the leadership of the union movement in Australia in the wake of Work Choices. Some sections, which might have taken action in the past, have become compliant. Other sections are placing their hope in the election of a Labor government at the next federal election, due sometime in 2007. Others are looking for the opportunities to fight back and lead struggles to their conclusion. The union movement is going through a transition. As with any challenge to the movement, a thoroughgoing debate on which way forward is under way.

Work Choices presents a significant challenge to the labour movement in Australia. Yet it is just the most far-reaching of a raft of draconian legislation that the Howard government has used to bash workers. Work Choices, the bcii legislation, and indeed the Howard government, can be defeated. If the campaign against Work Choices is to win, however, it must grow and make alliances with all those under attack from the government. It must also be unafraid to use industrial as well as political methods in fighting Work Choices. Staging a few large demonstrations to back up a campaign aimed at lobbying the opposition Labor Party and convincing voters in marginal Coalition seats to change their vote is a start, but it will not be enough to win.

[Graham Matthews is a member of the national executive of the Democratic Socialist Perspective, an affiliate of the Socialist Alliance in Australia.]