Australian Institute for Employment Rights (AIER) Executive Director Rob Durbridge outlines the wider implications of the federal government’s radical new WorkChoices legislation.
As we enter the new financial year, what is the forecast for the federal government’s WorkChoices package? Polls continue to show that the law is highly unpopular. Most employers are not taking advantage of it. The 4% take-up of Australian Workplace Agreements is concentrated in the Australian Public Service, the managerial strata and the skills-starved mining industry, as well as some vulnerable young and migrant workers.
Prime Minister John Howard once labelled the campaign against the WorkChoices revolution as “Chicken Little” scaremongering. But in the lead up to the federal election next year attitudes to WorkChoices may only be part of a wider shift away from neo-liberal policies. Does the unpopularity of the package presage a shift towards more egalitarian and democratic views?
The states’ challenge to WorkChoices in the High Court has created doubt about the validity of the radical new laws. It may mean employers are reluctant to jump in before the laws are found to be enforceable. The High Court transcript would suggest some judges are not convinced the Commonwealth has the power to legislate in the way it has.
But most legal experts agree that a majority are likely to find that it can.
Nevertheless, the majority on the bench may baulk when it comes to the most significant centralist shift since the acquisition of income tax powers by the Curtin Government in 1941 – a voluntary shift impelled by wartime exigencies.
Conservatives tend to abhor big central government, if only because of the potential gift it hands future Labor administrations. Nobody argues that the Constitution was designed to override the powers of the states in the way WorkChoices does. There is also a respectable statutory interpretation argument about reading the powers concurrently; what is the conciliation and arbitration power there for after all? Alternatively the court may find that the law should survive, but with limitations.
Neo-liberalism out of steam?
Legal doubt aside, attitudes to WorkChoices may represent something far more significant to the Australian body politic. It may be that the neo-liberal economic philosophy, of which WorkChoices is an expression, is running out of steam. Not many Victorians or South Australians of any political hue think electricity or transport privatisation has worked. Few in NSW think public-private partnerships are a great idea when it comes to roads. And a big majority of Australians think increases in tax and public spending should give priority to public education and health. Privatisation and deregulation are on the nose, views which may have major implications for industrial relations policy.
Neo-liberal industrial relations policy peaked in the mid-90s when the Organization for Economic Cooperation and Development (OECD) championed de-regulation. The reaction against them helped oust the radical rightwing Victorian and WA Governments. A decade on, the OECD says high productivity and low unemployment can be achieved through regulated labour markets, welfare and training arrangements. In the 90s the major countries of South America under the impetus of the World Bank adopted the deregulatory model. This caused crises and massive unemployment. Now there is a continental shift towards systems which recognise labour rights and an acknowledgement that they can go hand in hand with high economic growth. Global firms know this, leaving the Howard Government looking out of step and out of time.
What of the Australian Labour Party’s response? Labor’s opposition to legislated individual contracts (AWAs) comes after ten years of prevarication. Opposing AWAs was a poll-driven decision and a means of shoring up the political base of ALP leader Kim Beazley. But it has gained some currency. A recent Senate Estimates Committee hearing was told that most AWAs removed “protected” entitlements from workers who had “chosen” to sign them. Despite federal government claims that its new system would not disadvantage workers it is now clear that a key plank of its reform package is being used to cut wages and conditions.
Labour market deregulation was an article of faith for former ALP Prime Minister Paul Keating. The shift, engineered by the ALP and the Australian Council of Trade Unions (ACTU), to enterprise bargaining with an award safety net provided flexibility with protection against inequity. WorkChoices is not a simple extension of that process. It is clearly promotion of employers’ power at the expense of employees and a transfer of responsibility for many workplace protections from management to labour. This could well be a bridge too far for many ordinary Australians.
Some employers are uneasy about the radical changes embodied in WorkChoices which endanger good industrial relations in productive and successful enterprises. Many are dismayed at the complexity and government interference of WorkChoices which was promoted as a law to increase freedom and flexibility. We hear about phone calls to CEOs from Workplace Relations Minister Kevin Andrews asking why companies have concluded new collective agreements with unions. With a whiff of the star chamber, we read of employees being subjected to long interviews by government bureaucrats demanding evidence of industrial misdemeanors.
Shocking union campaign
The success of the unions’ campaign against WorkChoices has shocked the federal government which expected a boneheaded industrial confrontation. Instead unions have adopted a professional media strategy which has sold the union movement as Australia’s biggest member-based organisations that looks after families.
Never before has “Advance Australia Fair” introduced a union rally, particularly one of half a million gathered by SkyChannel in all states and territories at one time. The theme is clearly ‘defend the family’ – not selfish notions of union rights. Such a campaign has energised unions and held the line on declining membership.
How should a future federal government legislate to restore employment rights? The unions have toured of a number of countries and are developing policy for the ACTU Congress later this year. The ALP is working on a policy for its National Conference next year.
A new front for…democracy?
Most countries are way ahead of Australia in integrating policy on training, welfare and investment in skills, and this is starting to show up in shortages and guest workers. A new industrial relations package should draw on the past but also look to the future. As well as restoring the role of the independent umpire, it should focus on the contribution that the workforce can make rather than on intimidating and marginalising it. We should seriously consider the European model where workplace rights include consultation about company decisions, information about future plans and protection against retrenchments.
New policy should examine the role of industry councils with worker representatives contributing to plans for investment and management; why should democracy end at the workplace door? Councils can also provide research and strategy for industry restructuring, backed by collective bargaining. Collective bargaining within industry frameworks has been recognised as a viable option by the OECD as productive and more equitable; for unions it offers high membership and stability.
This is the “high road” to productivity. The “low road” of competing with developing countries – one embraced by WorkChoices – is one we cannot win. The Australian Institute of Employment Rights is promoting the development of a Charter of Employment Rights so that reform of the industrial relations laws can recognise rights and standards drawn from internationally recognised conventions.