In April 2018 unionists from a range of industries crowded into the Melbourne Town Hall for a delegates’ meeting to launch the Change The Rules campaign. Angry unionists knew from bitter experience that the Fair Work Act (FWA) — commonly referred to in the movement as the Unfair Work Act — was stacked against workers. But missing from this gathering was a genuine democratic debate about the end goal of the campaign, the changes required or what would be needed to win.
The FWA limits circumstances when industrial action is “protected.” If these extremely restrictive requirements are not met in full, a strike is deemed unlawful, with workers potentially fined thousands of dollars and unions millions.
Troy Gray, Victorian State Secretary of the Electrical Trades Union (ETU), nailed it when he said, “What good is a right you can never use? And even when you jump through every hoop they’ve concocted to stop you, they can still cancel your industrial action? It feels like we’re living in a dictatorship.” The ETU declared that the right to strike was almost dead!
Highlights of the campaign were three massive workday rallies demanding changes to the industrial relations regime. The vision of many out on the streets was to win a system where the right to strike is unrestricted.
Fast forward to the end of 2022. The Australian Labor Party (ALP) enacted the Secure Jobs, Better Pay Act. The Australian Council of Trade Unions (ACTU) urged unionists to lobby cross-bench Senators to pass the bill, headlining its media release with, “Finally, action on wage growth.” The government declared that the new laws will “get wages moving” and “close the gender pay gap.” Yet, despite the hype, there is no relief from cost-of-living pressures for working people, and real wages will continue to go backwards, particularly in sectors dominated by women, such as the Public Service.
New rules, old restrictions. The Secure Jobs, Better Pay Act contains a suite of amendments to the FWA. There are some minor reforms, but at its core, the new law is more of the same.
The law abolishes the hated anti-union Australian Building and Construction Commission, which was expressly set up to crush unions in the building industry. Yet many of its functions, including the ability to prosecute unions for militancy, will be taken over by the Fair Work Commission (FWC). The new law improves workers’ access to the Small Claims Tribunal to be able to recover stolen wages. Workers will have increased rights to request flexible work arrangements. Employers are now required to discuss these, and there is a dispute resolution procedure if agreement can’t be reached.
Changes have also been made to the principle objectives of the FWA. Job security and gender equity must now be explicitly considered by the tribunal in its determinations. Expert panels will be established, which must be consulted if a matter relating to gender pay equity is central to a dispute. Anti-discrimination measures within the FWA are also expanded to include breastfeeding, gender identity and intersex status.
The most debated part of the changes relate to bargaining. On top of single employer enterprise bargaining, there are now “streams” which allow multi-employer bargaining. The first is called “supported bargaining.” This replaces the existing low-paid bargaining provisions, which did not address low pay. In 2011, the United Workers Union unsuccessfully tried using this to lift wages in the grossly low-paid aged care sector.
The second stream is “single interest bargaining.” This requires the FWC to rule that multiple employers are “reasonably comparable.” The third is “cooperative workplace bargaining.” Under this stream, workers and employers must apply jointly, and all industrial action is banned outright.
The requirements to access multi-employer bargaining are even more restrictive that those in place for a single enterprise. Workers in the building industry, which has a history of union militancy, are prevented from taking part. Workers in small businesses with less than 20 workers are also frozen out.
One of the worst elements of the changes relates to the Better Off Overall Test (BOOT). Under the previous system, before they could be ratified, agreements were examined to apply this test, ensuring workers would not be worse off than under the relevant award — important because award wages and conditions are usually the least favourable. Labelled “simplification,” the new law weakens these protections.
The Retail and Fast Food Workers Union (RAFFWU), which is not affiliated to either the ACTU or the ALP, was very vocal about the impact that a watered down BOOT will have. In its submission to the parliamentary enquiry into the draft law, RAFFWU said, “The only reason to attack the BOOT is to pay workers less.” The union organises workers in the retail and fast food industry, where the ultra conservative leadership of the Shop Distributive Association (SDA) is completely pro-boss. This industry has a history of sell-out deals between the SDA and employers. RAFFWU used the BOOT to fight this and win huge back payments for workers. Before the election, the ALP promised that it would retain the BOOT and every worker would be better off. By removing the “prospective employee test” from the BOOT, that promise was quietly abandoned.
Beyond red tape and restrictions. Despite the howls of employer groups about “more strikes,” the Secure Jobs, Better Pay Act leaves the heart of the FWA intact and also gives the FWC increased powers.
Under the old regime, the commission already had the power to prevent industrial action in the “public interest” if profits were threatened. The FWC uses these powers when strikes have an impact. In 2016, strike action by workers at airports was halted after the commission ruled that the action “weakened airport security.” The FWC then made an unfavourable workplace determination, which still affects these workers today.
The new laws require compulsory conciliation to take place before a vote for “protected industrial action” is permitted.
The FWC is promoted as a neutral umpire, yet it is anything but! In 2018 the commission upheld the dismissal of a worker of 20 years’ standing from Q Catering, a subsidiary of Qantas. The worker — in her own time — took part in a protest organised by Transport Workers Union delegates after a co-worker was dismissed. While other participants were cautioned, she was dismissed. FWC’s reason to support the sacking? Her participation in an “unprotected” action was “premeditated,” because she had arranged placards!
Regulations empowering the FWC to use sweeping powers to fine unions and workers also remain in place. In June 2021, the CFMMEU was fined $382,000 for publishing a photo of a strike breaker on their Facebook page and calling them a scab.
Social Democracy in Australia has a long history of the state restricting union organising through laws mandating conciliation and arbitration. Indeed the inclusion of that principle in the Federal Constitution was the condition set by late nineteenth century unions and the newly formed ALP in exchange for organising worker support for the Constitution.
The Conciliation and Arbitration Commission was established in 1904, and the FWC is its latest incarnation. Five states also have industrial tribunals based on these principles, but workers are subjected only to the FWA. In 2018, the Industrial Relations Commission in New South Wales cancelled a rail workers strike on the grounds it would cause economic damage. Last year, nurses in NSW showed how to fight back against such partisanship. Despite repeated orders that action not proceed, nurses struck four times, demanding improved nurse patient ratios and rejecting a miserable 3% pay offer. In Western Australia the Industrial Relations Commission threatened the union with deregistration. The commission ordered it to call off a 25 November strike. This was ignored by nurses, who had voted for a 10% pay increase at their October mass meeting.
Decent pay and working conditions will never come from industrial tribunals. They have always come from workers exercising collective power, built through democratic grassroots organising. In the lead-up to the 2007 election, workers took part in the Your Rights At Work campaign. This was instrumental in the election of an ALP government, which enacted the FWA, replacing the hated Workchoices laws imposed by the reactionary Howard Coalition government. Now workers have been served up the Secure Jobs, Better Pay Act, which changes nothing fundamental.
Worth fighting for! Defiance, like that of the NSW and WA nurses, led to a huge strike in 1969 following the jailing of Tramways Union leader Clarrie O’Shea — an action that led to the repressive penal powers under the then Conciliation and Arbitration Act falling into disuse for nearly 25 years.
Militant union activists rallied working people to defy the commission, because it was the bosses’ court. They knew that its purpose, like the state it served, was to organise Capital and to disorganise Labour! Unionists today need to heed that call. All restrictions on the right of workers to collectively bargain and withdraw their labour must be scrapped!