In an address to the International Labour Organization (ILO), the President of the Australian Council of Trade Unions (ACTU) and the International Confederation of Free Trade Unions (ICFTU), Sharan Burrows, presents a compelling paper on the effects of the WorkChoices Act on Australia’s Compliance with Conventions 87 and 98 – Protection of the Rights to Organised and Collective Bargaining.
The Australian Government is now a serial offender of the very principles that sit at the heart of decent work – core ILO standards. With the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (“the Work Choices Act”) Australia’s longstanding failure to comply with its obligations under ILO Conventions 87 (Freedom of Association and Protection of the Right to Organise) and 98 (Right to Organise and Collective Bargaining) has been substantially exacerbated.
Emily Connor, a childcare worker and a single mother in her early twenties has no rights. Sacked from her childcare centre because the employer didn’t like her. Hard to believe but true and despite the affection of the children in her care, the distress of their parents and the anger of her work colleagues there is no redress. Where national law fails, unions often step in to bargain for protections, but sadly there will be young Emily’s in too many occupations because her union is prohibited from negotiating any mitigating procedures against unfair dismissal provisions in a collective agreement. In fact the union can be fined $33,000 for just putting the matter on the bargaining table.
Since 1997 the ILO’s Committee of Experts on the Application of Conventions and Recommendations has repeatedly observed that Australia’s legislation, as reflected in the Workplace Relations Act 1996, (“the WRA”) falls well short of meeting the requirements of Conventions 87 and 98. The Work Choices Act amends the WRA to further limit the possibility of effective trade union activity and collective bargaining. The Australian Government has not only ignored repeated requests by the Committee of Experts to amend the law to address its concerns, it has shown contempt for the ILO and its processes by legislating the precise opposite of what was requested of it.
FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE
The Committee of Experts’ concerns about Australian compliance with Convention 87 have centred on the right to strike, an integral corollary of the right to bargain collectively. In particular, the Committee has been critical of Australian law in the following respects:
- Industrial action cannot be taken in support of multi-employer agreements
- The matters which may be the objectives of industrial action are restricted and do not extend to claims for strike pay or to issues related to demarcation disputes
- All sympathy action, even in support of lawful industrial action is prohibited
- Prohibition of industrial action goes beyond essential services in the strict sense of the term.
As was previously the case, the amended WRA prohibits industrial action in support of multi-employer agreements.
Today the restrictions on multi-employer agreements have been extended to prevent common claims on enterprises (pattern bargaining) irrespective of the nature of the work or the relevance of equal pay or the inherent fairness in ensuring nondiscriminatory conditions within an occupation or industry sector.
Where pattern bargaining is found to be occurring, the Commission must suspend or terminate the bargaining period, thus preventing the taking of lawful industrial action.
There is a rights-based approach operating in Australia but it is all rights for the employer.
For a company can impose the same individual contracts company wide, all common, to all of its employees, no negotiation, stripping away established conditions including penalty rates, shift allowances, overtime rates, certainty of hours – no protection for established conditions. It can waive the threat of dismissal over their heads if they don’t sign.
Balance that against a union being prohibited from lodging a common claim for the same company, same employees, in more than one worksite. This is Australia today – industrial lawlessness in the moral sense of the term is rampant – on the part of the employers.
And our Prime Minister is complicit.
Consider the case of Spotlight, a chain of fabric and homeware stores. It employs around 6000 workers and is highly profitable. New staff will be forced to sign a contract if they want a job that will strip them of entitlements worth $90 a week. Existing staff know that likewise there is no protection for them as they watch in shock the treatment of their work colleague Annette Harris. Annette went on holidays and the company treated her leave as a termination. When she returned offered her a new contract with the loss of these long-established conditions. Her compensation – 2c an hour in her base wage!
Worse still our Prime Minister suggested this was good for the “health of the economy”! $90 to our Prime Minister might be small change, in fact he just gave himself more than this a week in a tax cut, but for Annette with the rise in interest rates and petrol costs alone, it means the struggle to make ends meet at 57 just got harder!
No bargaining, no protection for established conditions and no redress – total power in the hands of the employer.
The Right to Strike
Nations will be shocked to understand the stark and punitive restrictions on industrial action and therefore on union bargaining. When an employer simply refuses to bargain or bargaining breaks down the imposed secret ballot process to gain legal authority for industrial action is cumbersome and takes several weeks.
Even when that hurdle is overcome the Minister, or a third party affected by the industrial action, can seek an order that a bargaining period be terminated or that unprotected industrial action cease, thereby significantly widening the ability of parties other than those involved in the negotiations to seek to prevent the taking of industrial action.
The fact that an application for cessation of strike action has to be dealt with within forty-eight hours or an interim injunction granted to effect a cooling off period in reality outlaws the power of influence that workers have in a bargaining context – the right to strike.
The Work Choices Act further narrows the range of matters which can be the subject of industrial action by providing that action is not protected if it is taken in support of claims which include “prohibited content”; that is, matters which could not be included in an agreement. There is no free or unfettered bargaining with the Work Choices Act providing the power to proscribe matters which cannot be included in agreements and then delegates regulatory power to the Minister to determine what those matters might be. Prohibited matters include:
- Trade union training, including for occupational health and safety
- Paid union meetings
- Restrictions on use of individual contracts (AWAs) by the employer
- Payroll deduction of union dues
- Processes for negotiation of successive collective agreements
- Unfair dismissal protections
This list is not exhaustive and if the Minister determines at any time that there is a matter or matters in a collective agreement that he fails to approve of they can be subsequently prohibited from the bargaining process for all other unions.
Industrial democracy – certainly not; rather the most interventional approach ever seen in Australia and rivalled I suspect nowhere in the democratic world. Matters that do not “pertain” to the employment relationship are not protected under the WRA. A major difficulty resulting from this decision has been the lack of certainty for parties about when a particular claim pertains to the employment relationship due to the complexities associated with this particular legal issue.
This means that in some cases workers will find out only after they have taken industrial action and become subject to penalties of up to $6,000 each as their action was not protected because of a technicality associated with one or more of the claims. It was open to the government to deal with this issue, as well as with concerns raised by the Committee of Experts, by amending the WRA to allow the parties to determine the issues around which they would bargain. Instead, the Work Choices Act as explained toughens the exclusion, by regulation, from bargaining, and therefore from industrial action, of an unlimited number of specific matters as determined by the Minister.
In addition to prohibiting these matters being the subject of bargaining, the Work Choices Act also introduces a serious financial penalty for a person or union who even seeks to include prohibited content in an agreement.
The effective criminalisation of union activity is stark. Seek to protect workers rights in a collective agreement, do your job as a union official and break the law!
Rather than providing an ability for workers to take sympathy action in support of lawful industrial action, as requested by the Committee of Experts, the Work Choices Act has introduced additional restrictions on the right to take protected action, including a tightened prohibition on industrial action taken in concert with other parties who are not protected.
The Work Choices Act also provides for the Minister to unilaterally issue a declaration terminating a bargaining period in the circumstances where he determines such action is likely to damage the economy. Add to this the constraints on union right of entry into workplaces and it is not hard to see that freedom of association is no longer guaranteed in Australia.
RIGHT TO ORGANISE AND COLLECTIVE BARGAINING
In reviewing Australia’s compliance with Convention 98, the Committee of Experts has been particularly critical of the following aspects of Australian law:
- The primacy given to individual over collective agreements
- The level of collective bargaining
- Greenfields agreements
- Lack of protection against anti-union discrimination
- Restrictions on the subject matter of bargaining
As with Convention 89, the Work Choices Act has shifted Australian law further away from compliance with the Convention and the addressing of the issues raised by the Committee of Experts.
The Primacy of Individual Agreements
In its 2005 report, the Committee of Experts asked the Australian Government to report any measures taken or contemplated to address its concern that a collective agreement made subsequent to an Australian Workplace Agreement (AWA) may prevail over it only after the expiry date of the AWA. The Committee noted a “special issue” in that workers deciding to join a union during the course of their employment would not be able to benefit from the collective agreement, even if they had originally signed an AWA merely because it was required as a condition of being employed in the first place. Rather than addressing these issues, the Work Choices Act further emphasises the primacy of AWAs over collective agreements.
The Work Choices Act provides that a collective agreement has no effect if an AWA is in place, irrespective of whether the AWA was made before or after the collective agreement and irrespective of the period of operation of the collective agreement. This means that an employer is free to offer AWAs to employees the day after concluding a collective agreement with a union or behalf of all employees and which is expressed to apply to current and future employees until a specified expiry date. In the case of new employees, an AWA substantially inferior to the collective agreement can be required as a condition of employment, meaning that the collective agreement would, over time, become increasingly irrelevant.
The incentive for employers to use AWAs in this way to reduce wages and conditions of employment have been substantially increased by the repeal of the requirement that an agreement not disadvantage employees in comparison to the terms of an applicable award. The “no disadvantage test” has been replaced with a requirement only that the agreement not displace a small number of minimum conditions. Although the Work Choices Act purports to protect award conditions for existing (not new) employees, these can be displaced by specific provision in the AWA. The employer can, in some industries, strip workers of up to a quarter of their weekly take home pay.
The primacy given to AWAs under the Work Choices Act makes the ability of unions to bargain collectively on behalf of their members nugatory in any practical sense, particularly given that individual AWAs are likely to expire on different dates, meaning that there is never a time when all employees are in a position to bargain collectively. The increase in the permitted period of operation of an agreement from three to five years demonstrates the absurdity of the government’s contention that employees’ right to bargain collectively is not curtailed by the ability of the employer to require the signing of an AWA prior to employment because they can become covered by a collective agreement after the expiry of the AWA. By the time five years had expired so would the collective agreement and most if not all employees would undoubtedly also be on AWAs with different expiry dates, leaving no scope for collective bargaining.
The Level of Collective Bargaining
As set out above in relation to Convention 87, the Work Choices Act establishes a new requirement of prior authorisation for multi-employer agreements, rather than removing the requirement as requested by the Committee of Experts.
Also, as set out above, the prohibitions on pattern bargaining force an even greater focus on the single business than was previously the case, even though the business might be one part of a larger group of enterprises with common ownership and management. In respect of non-union collective agreements, the Committee of Experts has previously noted that employers may refuse to negotiate with representative trade unions, or cease to do so even after negotiations have commenced, and negotiate only with employees directly, whether individually or collectively. The Committee of Experts has requested the government to amend the law so that negotiations with non-unionised workers can take place only where there is no representative trade union in the workplace.
The Work Choices Act reduces the rights of trade unions to represent their members in bargaining collectively.
Boeing is a company you would all recognise. It refused to bargain with a group of engineer for almost six months while signing agreements with our colleague union in America at the very same time. It even opposed the holding of a secret ballot of affected employees to determine their preference for an individual contract or a collective agreement. This major multi-national was prepared to starve the families of these workers rather that negotiate a collective agreement. I fear Australia’s laws are simply at the head of the pack of MNEs seeking such unilateral power in the globalisation race for profits before people.
As set out above, the new priority given to AWAs over existing and operative collective agreements removes the practical effect of collective bargaining even where it has apparently been successfully undertaken in good faith by the union.
The Work Choices Act leaves the employer free to refuse to negotiate with unions even where employees wish to be represented collectively. The additional restrictions on the taking of lawful industrial action, and the additional sanctions available for unprotected action reduce the capacity of unions to put pressure on employers who refuse to negotiate. There is no right to collective bargaining in Australia.
Prior to the Work Choices Act employers commencing a new business were able to enter into an agreement with a trade union to cover future employees for a period of three years. The Committee of Experts has expressed concern that this provision permitted the employer to choose the bargaining partner and denied the employees their choice of representative for up to three years, which the Committee held to be excessive.
Although the Work Choices Act reduces the period of operation of a Greenfields agreement from three years to one, the requirement for an agreement to be made with a trade union has been removed; that is, an employer starting a new business can “negotiate” an “agreement” with itself or, in other words, unilaterally determine terms and conditions for its employees. The Work Choices Act has addressed the Committee of Experts’ concern about employer choice of bargaining partner by removing the need for a partner altogether.
The Work Choices Act has also extended the scope of Greenfield’s agreements beyond the establishment of a new business, project or undertaking to cover any new activity proposed to be carried on by a government authority, a body in which a government has a controlling interest or which has been established by law for a public purpose. The law has also been clarified to make it clear that the reference to a new project that is of the same nature as the employer’s existing business activities. The effect of these changes in that employees on each of an employer’s construction sites, for example, could be employed under a unilateral employer agreement for twelve months, during which time AWAs could be introduced to ensure that collective bargaining never becomes a practical reality.
As set out above, the Work Choices Act does not provide protection for workers who refuse to negotiate an AWA and insist on having their terms and conditions employment governed by collective agreements, which the Committee of Experts has held to be contrary to Articles 1 and 4 of Convention 98.
An employer’s refusal to employ a person who refuses to sign the AWA offered at the recruitment stage continues to be lawful, although now this may occur even where a collective agreement negotiated with a trade union would otherwise apply to that person, when employed. This means that a union member applying for a job and aware of the terms and conditions applying to employees under a union-negotiated collective agreement could be required to sign an AWA undercutting those conditions, and so undermine the union collective to which he or she belongs. The only alternative for that worker would be to forfeit the job.
Or to our shock forfeit a promotion in the case of a long-standing worker with a company called Landscape Direct. Upheld by the Federal Court the employer can not only now say” sign the contract or you don’t get the job” for any new applicants but now “sign the contract or you can’t have a promotion”.
In relation to existing employees, the Work Choices Act expands the circumstances in which employers can offer AWAs to employees to include the period of operation of a collective agreement prior to its expiry date. This means that at any time after the conclusion of collective bargaining negotiations intended to set the terms and conditions of all employees, the employer is free to offer inducements to employees to give up their future collective bargaining rights.
The government claims that employees who refuse an offer of an AWA can continue to be covered by their collective agreement. This will not be the case where the employer has utilised its new option of unilaterally terminating the collective agreement ninety days after the passing of its expiry date. Under this scenario, the employer can terminate the agreement, leaving the employees forced to choose between an AWA or return to the minimum wages and conditions provided for by the Act.
The criminalisation of union activity is clear and shocking but without national law and/or the capacity to bargain fair dismissal provisions union members and activists are being sacked wilfully. While given other reasons for dismissal we know that where union members agitate for a collective agreement or stand up against unsafe practices they are increasingly targeted.
One of the sadder cases for me, Michael, a father of four, injured at work, dismissed when the company, Triangle Cables, is actually expanding. While his union will try to prove unlawful termination – at a cost of up to $30,000 to take such a case of alleged discrimination to court not only would this be beyond the reach of Michael but with an injury sustained in an unsafe workplace he will be at risk of being out of work for some time and he knows may very well lose the new home he and his wife had so proudly invested in for his family’s future.
Forgive me but these laws are not fair or just, they flout ILO standards and are a serious attack on the basic rights of the working people of my nation. They are not a legacy anyone in good conscience would want to leave to our children.
I submit that the Australian Government’s wilful refusal to respond to the Committee of Experts concerns about Australia’s failure to adhere to its obligations under Convention 87 and 98 and its contemptuous flouting of these standards in its latest legislation deserves the strongest possible condemnation by the Committee and the ILC.
The Australian Government ‘s new ‘WorkChoices’ legislation actually means no choices for working Australians and unilateral power to employers – a backward step for a rich and democratic nation like Australia and a backward step for international labour rights. Australia’s working people and their families need your support.