The attack on civil & industrial rights
Geoff Derrick
There is and always has been an inextricable link between workers rights and civil rights, from the days of the Tollpuddle martyrs, hanged or deported for organisng an attempt to collectively bargain in the 19th century, to today with the proclamation of the Howard government's WorkChoices legislation.
Unions, however, have not always been prepared to engage in the broader debates about civil liberties, and have paid a significant price for this position in terms of their subsequent capacity to mobilise and join with broad based community action on matters of central importance to working people and their families.
In the USA, for example, the organised labour movement through the AFL-CIO opposed the civil rights movement in the early 1960s, because it was seen as a threat to the jobs and living standards of poor white workers. Then when the mass movement against the USA's involvement in the Vietnam war took hold, organised labour opposed it to the point of violent clashes between protesters and unionists, on the basis that the anti-war movement was considered to be anti-American, as part of a spin off from labour's own internal debates and the McCarthyist era. The feminist movement, which had great success in the late 60s and 70s, did it without the support of organised labour, again, because of a fear for the jobs of working men. By the 1990s, another social movement had taken hold in the US, this time around environmental concerns, but again organised labour stood apart from the community on the issue because of job security concerns among manufacturing workers.
Australia's unions have a chequered history when considering the response to social movements; we supported the White Australia Policy and many unions, including my own, were reluctant to embrace women's rights until the second half of the last century. On the other hand, unions opposed Japanese imperialism in the 1930s, supported the land rights struggle, opposed conscription and the Vietnam war and introduced the Green Ban as part of its commitment to social change and civil rights.
In 2005 the Commonwealth parliament passed legislation providing for abolition of the right to silence under threat of imprisonment; imprisonment for breaching confidentiality provisions regarding the parties to a dispute, fines for people who asked for their existing rights to be respected into the future, and abolition of a grievance procedure that had worked for 100 years.
These breaches of civil rights are just one part of the anti-union, anti-civil rights legislation crunched through the parliament by Howard in the second half of 2005. In the same six months, he also pushed through new so-called anti-terrorism laws that also represent a serious attack on long held legal and moral principles of civil and political rights in this country. But that is not my area of particular expertise or knowledge.
Among Howard's grey suited cheer squad, through this orgy of political excess from the most biased and divisive government in Australia's history, were the CEOs and board room denizens of Australia's corporate elite. Not least of those cheering, were the top 100 companies represented by the Business Council of Australia, of which some 21 are in the finance sector. The Business Council levied its members a minimum of $100,000 each to fund a $10 million advertising campaign in support of the changes. This campaign ran on top of the $55 million government advertising campaign. None of which fooled ordinary Australians.
For those less familiar with the finance sector here are some handy facts and figures.
The industry
The finance sector:
• comprises 30 per cent of value of Austalian Stock Exchange;
• includes the five largest banks and five largest insurers, with market capitalisation of $280 billion (more than the combined GDP of Iraq, Afghanistan and NZ);
• is notorious for executive largess (CEO pay and benefits have been growing exponentially, often despite a spectacular lack of success; in 2002 the pay differential ratio between the CEOs of the big four bank and the CSO (tellers) rate of pay was 188:1);
• has the highest gender pay gap in the economy and growing - women earn an average of 58 per cent of what men are paid in the industry;
• has the second highest productivity growth in the economy in the past decade after media & telecommunications.
The workers
Reharding the workers in the finance sector:
• there are 250,000;
• provide 45 per cent of all new jobs in NSW;
• are in the majority women;
• experience strong gender segmentation with resulting glass ceilings (most women in clerical roles, most men in professional and managerial roles);
• is an aging workforce;
• work 1 million hours of unpaid overtime each week.
Clearly, these employers needed some intervention from the federal government to free them from the oppressive yoke of trade union initiated regulation of wages and conditions.
The changes
So, in the name of modernising the workplace, the employers' lawyers drafted new rules in the cold of a Canberra winter that the federal government introduced. Some of the effects of these laws provide for the following;
You can be forced onto an individual contract when you take a new job - including transfers & promotions.
Awards stripped back to 13 'allowable matters' and no longer act as the safety net.
Disputes can only be settled in the courts with added time and expense; the same applies for enforcing workers' rights and entitlements.
Contracts are secret - union officials can go to gaol for revealing contents of an AWA.
No right to unfair dismissal if the boss employs fewer than 100 employees.
Anyone can be sacked for 'operational reasons' (paradox that you are excluded from unfair dismissal claim if you are made redundant, but you are not guaranteed any redundancy rights).
The Industrial Relations Commission has no power to decide settlement to disputes unless agreed to by bosses.
Union officials seeking access to workplaces to investigate suspected breaches of workers' rights require the union to name the workers for whom they are investigating, require the union official to demonstrate to the AIRC that the suspicion is genuine (before it is investigated), allows the employer to nominate the location of any interviews that take place, and is excluded totally where the employer has a non-union agreement or an employer initiated greenfields agreement.
Your rights will be limited to five basic conditions.
$12.75 minimum wage.
4 weeks annual leave (1/2 can be cashed out).
10 days sick/personal leave (need a certificate every day).
38 hour week (averaged over 12 months), with no penalty rates guarantee after that - so effectively this is reduced to a promise that workers should be paid for all time worked.
12 months unpaid parental leave.
The rest will be up to what your boss decides to give you.
Once you enter into any agreement under WorkChoices (individual or collective), 90 days after the nominal expiry of that agreement you will revert to the five basic conditions unless you reach a new agreement - no matter how bad it is.
The award is permanently set aside once you enter into your first agreement with your employer, even if that agreement only operates for 3 months as one employer recently tried to do. After that, you just get John Howard's 'Safety Net'.
Big fines for unions and union staff who are said to be in breach of the new arrangements.
Howard's newspeak words like 'simpler' and 'fairer' hide the truth, which is the loss of your rights at work! He deliberately confuses and exploits differences, like 'Unfair Dismissal' compared to 'Unlawful Dismissal'. The changes are an attack on the Australian way of life.
Specific tactics
The WorkChoices regime is not aimed at creating one job or growing the economy; it is simply designed to further alter the balance of power in the workplace so that capital receives an even greater share of production than labour.
It is not the first time Howard has attacked unions to help out his mates at the big end of town. The 1996 Workplace Relations Act, with its introduction of AWAs, the stripping of Awards, restrictions on legitimate industrial action, the limitations on the powers of the AIRC, the erosion of union right of entry into workplaces was the first wave. The second wave was frustrated by the Senate in 1999, and there have been a series of High Court appointments designed to stack the court and cement conservative judicial review of employer and union activity, which has resulted in decisions like Electrolux, that introduced a very narrow interpretation of legitimate industrial issues and therefore legitimate union activity.
It is up to individual employers to decide when and how to use this additional power. Some will move quickly in order to realize expected windfall gains through cost cutting; others will carefully implement chosen elements in order to orchestrate lasting cultural change in the business. Others will reluctantly join the race to the bottom of workers rights in order to remain competitive, simply because these laws will provide short-term rewards to those competitors who maximize their profit at the expense of the interest of their workers.
Among the tactics already used by finance sector employers to pursue an industrial ascendancy in the 10 years of Howard rule that I have witnessed, are:
Refusal to bargain collectively at the expiry of agreements allowing inflation to undermine the value of the safety net offered by previous collective agreements.
Termination of union payroll deductions in an attempt to financially cripple the union.
Frustration of union recruitment efforts by excluding officials from new worker inductions, limiting the rights of union delegates and misusing privacy and free choice arguments to encourage non-members.
Forcing staff to resign their employment and recommence employment with another legal entity without a union agreement in order to take up promotional opportunities or pay increases.
Mechanising time and wages records so that workers can no longer record their own hours of work.
Holding captive audience 'compulsory staff meetings', which are video recorded to push for non-union outcomes.
Refusal to recognize union delegates and denying them time to attend to their union duties.
Breaking the nexus between pay and work time and replacing it with variable pay determined by achievement of sales and related targets.
Setting staffing and overtime budgets for line managers that must be met if the manager is to progress in his or her career.
Reorganisation of management hierarchy so that the compliance with industrial laws is the domain of advisors to the business with no enforcement authority - based on risk management theory.
Using AWAs and common law contracts to undermine collective rights and entitlements.
Refusal of union right of entry to selected areas on 'security' grounds.
Denial of workers' rights to be represented in performance management processes.
Convening compulsory 'training' or free breakfasts to coincide with union meetings.
Fighting back
The attack on workers and their institutions is economically motivated but politically controlled. It is government that sets the rules and provides the lead for employers. So it follows that if unions are to be successful in defeating these attacks we must have both an industrial element and a political element to our response. The industrial element must engage new strategies and tactics that get past the barriers that the government and some employers have attempted to put between individual workers and their unions. We are doing this using a variety of tactics and with some encouraging signs of success.
We know that our members want the union 'in their corner' and understand the power that the employer has over them. They are very concerned about the prospect of AWAs and individual contracts. We know that they object to the imposition of sales targets that include constant pressure in order to keep their jobs. They hate not being able to deliver the service that customers are paying for because of staff shortages. They are concerned about attacks on their pay and conditions and don't believe the government's spin.
Among the industrial tactics that I can openly talk about are ringing and visiting members at home at night to discuss their needs and wants, utilising email and the internet to disseminate accurate information quickly and cheaply, adopting a Zero Tolerance approach to employer breaches of workers' rights and entitlements and the introduction of sophisticated data and case management tools that integrate our organising with our member servicing activities.
There are other tactics that we have adapted from our North American brothers and sisters, but on legal advice I can't tell you about them. Our political tactics involve a deliberate attempt to leverage off our credibility in the workplace to broaden our relationship with members to include overt political engagement.
In 2004, FSU pioneered a home calling plan in the federal seat of Parramatta; making direct telephone or face to face contact with a majority of our 1300 members in that electorate, and working with them to identify the critical issues that would lead them to change their vote, and then educating them about the policies of the major parties in relation to those issues. On our own data, we saw 90 FSU members in that seat change their votes away from the Liberals and towards Labor.
It seems to us that, rather than see the ALP turn on itself with the almost inevitable calls for an end to 'union influence' in the party every time the going gets tough, the future of organised labour and the Labor Party are inter-linked. The one group in the electorate that consistently votes for Labor are union members, with up to 75 per cent putting Labor ahead of the Coalition in 2004 when IR was not even an issue. As my American friends would say, you do the math - the more union members, the more people that will vote Labor. No wonder John Howard has made it a life long ambition to destroy unions.
But the ALP cannot take unions for granted. Labor in government, state or federal, has an obligation not only to pass fair laws which facilitate the legitimate activity of unions providing an effective countervailing force to the power of employers in the workplace. There is also an obligation to ensure that the economic activity of government both as employer and as consumer of goods and services is consistent with Labor values.
The ACTU's own research indicates that, before WorkChoices was announced, there was less than 20 per cent recognition of the rights of working Australians as a political issue, but that figure changed to up to 80 per cent opposition to the federal government's agenda once people were informed about the detail. There is a real opportunity here for Labor to get it right and win the overwhelming support of the community along the way.
The federal and NSW governments are the top two single users of finance sector services in the economy; they have a real role to play in the procurement of goods and services to ensure that those who provide these goods and services engage in fair and reasonable employment practices and comply with the social, environmental and industrial standards that has always been at the heart of Labor's principles.
While the Howard government uses its economic power to force universities to adopt AWAs and other anti-union policies, and to support anti-union behaviour from employers like Patrick and Boeing, state Labor government's must apply standards that will gel with the community by requiring service providers to comply with minimum standards, such as ILO conventions around child labour, OHS, collective bargaining, union rights and local content that secures employment opportunities for Australian families. These employers are in business to make money. It is the role of unions and the ALP to ensure that this is not done at the expense of the community and to develop an economic model that rewards responsible employers who invest in people and their communities. If we build it they will come.
Geoff Derrick is the Secretary of the NSW ACT Branch of the Finance Sector Union. These are the notes for his presentation to the Evatt Foundation's sunset seminar to on the current attack on industrial and civil liberties, convened at the Sydney Mechanics' School of Arts on 14 March 2006.
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