April 2007 ALP policy compared with the ACTU's demands
The general heading "IR policy" covers two distinct areas.
One, protection for workers' conditions which they can claim or enforce by resort to public enforcement agencies or tribunals. Two, rights (embodied in law) for workers to organise, to be represented, and to take industrial action so that they can themselves claim or enforce better conditions at work.
Both are desirable. Even where a trade-union movement is extremely strong, some workers at the fringes of the economy will be unorganised, and it is advantageous to have laws which extend to them the conditions won by stronger groups of workers. Socialists were debating this as far back as the mid-19th century, arguing (including against some trade unionists, who thought it better to rely exclusively on enforcement by industrial militancy) that it was vital to demand that working hours be limited by law and not just by different workplace agreements.
But protection for workers' conditions via courts and tribunals is no substitute for the right of workers to organise to make and enforce our own claims. In Franco's fascist Spain the laws made it quite difficult for employers to declare redundancies; but independent unions had to organise underground.
The Liberal/ National government's Work Choices and BCII legislation has attacked both publicly-enforced workers' protections, and workers' rights to organise. In response the ACTU, in October 2006, adopted a wide-ranging set of demands for both protections and rights to organise.
In April 2007, Labor leader Kevin Rudd presented an industrial relations policy to Labor conference, and the union representatives there unanimously voted for it as an acceptable advance towards the ACTU's demands.
Rudd's policy falls very far short of allowing workers an effective right to organise and to take industrial action. In the other realm, of legal protections for workers' conditions guaranteed "from above", by the state, it is deficient, but much less so. Maybe that is why many leaders think it to be, in Paul Keating's words, "as good as it gets". But the whole experience of the working class under capitalism, and the whole nature of capitalism, tells us that protections "from above" are not sufficient without the right to organise "from below", and indeed require vigilant and lively organisation "from below" even to be enforced.
THE RIGHT TO STRIKE
ACTU policy asserts the right to strike. It insists that "legally protected industrial action should be available... without the need for a secret ballot", though of course "unions should not take action unless it has been democratically endorsed". It calls for the repeal of sections 45D and E of the Trades Practices Act, which ban "secondary" boycotts.
Rudd would restrict the right to strike probably more than it has ever been restricted in a universal-suffrage democracy. Industrial would be legal only during the bargaining period of an enterprise agreement; only for demands related to the agreement; only after an externally-conducted secret ballot; and never if it was "in support of an industry-wide agreement".
It would be illegal to respond with industrial action to bosses' attacks during the term of an agreement. It would be illegal to conduct solidarity or political strikes. It would even be illegal for better-placed workers in an industry to take action to improve conditions across the whole industry, including the more weakly-placed workers within that industry.
Even if industrial action is legal in Rudd's very restrictive terms, it can be made illegal. "Fair Work Australia will have the power to end the industrial action", even before it starts, if it "is causing or may cause" - notice, may cause - "significant harm to the wider economy".
It would be unlawful to compel employers to pay workers for days on strike. It would be quite lawful, however, to lock out workers taking industrial action, even, presumably, if it is only a work to rule or an overtime ban.
Under Rudd's proposals, enterprise agreements can run for four years (the ACTU proposes a maximum of three years). Thus, workers would be deprived of any legal right to resist or protest against what the boss does for as long as four years at a time.
THE RIGHT TO ORGANISE
The ACTU policy includes a substantial section on the right to organise. Learning from experience in the USA, it stipulates "a fast-track mechanism" for redress against victimisation of union activists, with "interim orders" to restore them to their jobs pending hearings. It calls for prohibitions on employers to offer inducements to deter workers from joining a union.
It requires rights of access to workers and to work sites for union delegates and union organisers. It requires bosses to give union delegates time and facilities to carry out their jobs, and to give them information.
None of that is in Rudd's text. There is only a sentence which reads: "It will be unlawful for anyone to try to stop a working person exercising this free choice by threats, pressure, discrimination, or victimisation".
And, in the context, Rudd may intend that sentence as the basis for legislation against picketing, or against unions expelling scabs, the "free choice" being "whether or not to join... a union, or participate in collective activities".
ACTU: "Employers should have a statutory duty to recognise and deal with a union representative acting on behalf of a member... Union members should have a general right to representation in discussions with their employer [on the whole range of issues]... The right of union members to representation should not be conditional upon the level of union membership at the workplace".
Drawing on US experience again, the ACTU correctly insists that union representation is a right for each individual worker, even if all his or her workmates are too scared to join the union; and, in order to break those other workers' fear, the union must have the right to be recognised by the employer - and not just at enterprise agreement bargaining time - and show its ability to defend workers as soon as it has the smallest foothold in the workplace.
Rudd: where there is collective bargaining on an enterprise agreement, "employees who are union members will be able to be represented by a union that is eligible to represent them". That's all.
COLLECTIVE BARGAINING
The ACTU proposes "a general obligation on all parties to bargain in good faith". The legislation "should expressly require the Commission to make good faith bargaining orders where a majority of employees support the collective bargaining process". The making of such orders should be "mandatory" - basically, compulsory for the Commission if the union can show any reasonable evidence (petition, mass meetings, whatever) of majority support in the workplace for bargaining. In all cases, the "party which is opposed to the collective bargaining process... should bear the onus of demonstrating why the Commission should not make an... order" to require good-faith bargaining.
Rudd's formula where bosses refuse collective bargaining? Fair Work Australia may (or may not) choose to determine the level of support for collective bargaining among the employees. It can decide how it does that. If FWA decides that there is majority support, then the "employer will be required bargain collectively..." The onus would be on those who support collective bargaining to prove their case, and even if they could, it would not be obligatory for the FWA to heed them.
Rudd's formula greatly weakens the pressure on bosses to bargain.
The ACTU stipulates "the ability for parties to engage freely in 'pattern bargaining', that is, to pursue common claims and outcomes in two or more single business agreements". It says that multi-employer bargaining should be allowed, and in some conditions (rather vaguely described) the Commission may compel employers to do multi-employer bargaining. Rudd says only that "Fair Work Australia may facilitate [?] multi-employer collective bargaining for low-paid employeees..." It may or it may not, and the employers may not choose to be "facilitated". Bottom line, for Rudd: no "industrial action in support of an industry-wide agreement" will be legal.
The ACTU policy specifically rules out "greenfield agreements" signed by unions with employers for a new workplace before there are any workers on site. Rudd's text specifically rules them in.
LEGISLATED MINIMUM STANDARDS FOR ALL WORKERS
* "A right to information and consultation in the workplace"
The ACTU stipulates this right, and spells out detailed requirements for bosses to give workers and unions information on company strategy and planning and the company's financial position; and to provide for at least two meetings to consult on these, in paid working time. Rudd's "minimum standards" include an item on "Information in the Workplace", but it requires bosses only to give new starters a standard leaflet about their rights and entitlements.
* "A statutory guarantee that workers' entitlements will be paid in the event of company failure"
The ACTU calls for this. Rudd offers nothing.
* Working week
Both ACTU and Rudd call for a 38 hour week. At first glance Rudd's formula even looks stronger: "Under Labor, the standard working week for a full-time employee will be 38 hours". The ACTU: "An average of 38 hours in ordinary time each week" (which leaves the option of, for example, some weeks being 76 hours and some zero hours, so long as they average out at the end of the year). However, any strength of Rudd's formula is immediately removed by the next clause: "Employees may be required to work additional hours". So, your working week is 38 hours, but... it could be more. Rudd adds that we "cannot be required to work unreasonable additional hours", but without definition of what might be "unreasonable" and who decides.
* Annual leave
Both ACTU and Rudd stipulate four weeks. The ACTU stipulates a fifth week for regular shift workers. Rudd, no. Both stipulate public holidays, with slight variations in detail.
* Parental/carers' leave
Both ACTU and Rudd stipulate 24 months parental leave. Rudd goes into more detail: the 24 months' unpaid leave can be shared between two parents. (Single parents only get 12 months). ACTU stipulates "right for parents of pre-school children to part-time work". Rudd leaves a large get-out clause for employers: "the right for parents to request flexible work arrangements until their child reaches school age. Employers will only be able to refuse... on reasonable business grounds". Both ACTU and Rudd stipulate ten days' paid personal/ carers' leave per year.
* Redundancy notice and pay
Both ACTU and Rudd stipulate this. Rudd lists more details, but would disqualify anyone in a workplace of fewer than 15 employees from any redundancy pay at all.
Rudd lists paid jury service leave as one of his ten "minimum standards", while ACTU refers to it as something established through "other legislation". Rudd also proposes a process of establishing a uniform national system of long service leave entitlements.
AWARDS
The ACTU calls for "no limits on the matters to be contained in awards". Rudd would limit awards to only ten (named) further items.
TRANSFER OF UNDERTAKINGS
ACTU wants a law to require bosses taking over a going business to respect the awards and agreements already in place there. Nothing from Rudd on this.
INDEPENDENT CONTRACTORS/ LABOUR HIRE
The ACTU calls for the repeal of the Independent Contractors Act 2006, and for legislation to guarantee workers employed as "independent contractors" the same rights and conditions as regular employees. It advocates that the Commission should have powers to deem some workers, employed as "sham" independent contractors, in fact to have employee status. It also states that an enterprise agreement or award "should apply to all workers performing the same work at [an] enterprise, including labour hire employees".
Rudd's text gives no commitments at all on these issues.
UNFAIR DISMISSAL
ACTU calls for all workers to have redress for unfair dismissal. Rudd would limit it to workers employed for six months or more, or twelve months or more if the employer has fewer than 15 employees. Rudd also says that reinstatement can be refused if it "is not in the interests of the employer's business". He also says, ominously, that "Labor will ensure that errors of a procedural... nature do not automatically result in the finding that a dismissal is unfair". Labor will write a Fair Dismissal Code, and if a small employer has complied with the Code (presumably, given warnings and so on), then the dismissal will be a fair dismissal. So, if the boss has gone through the formal procedures, the dismissal is fair, come what may; and even if he hasn't, his "errors of a procedural nature" won't necessarily matter.
STATE INDUSTRIAL RELATIONS SYSTEMS
The Rudd policy would abolish state industrial relations systems except for State government and local government employees - direct employees, that is, not workers providing State or local government services on a contracted-out basis.
The ACTU policy supports "provisions... enabling parties to opt to be bound by State industrial relations laws rather than the national legislation". There is no socialist principle, of course, for preferring State industrial relations systems to a federal system. But some unions find the possibility of switching to and fro between federal and State jurisdictions to be a considerable tactical advantage. They would lose that advantage.
ABCC
ACTU calls for the abolition of the ABCC and the straightforward repeal of the Building and Construction Industry Improvement Act.
Rudd's text appears to go along with these ideas. "Labor does not believe in separate industrial rules and regulations for different industries". But it also suggests an ABCC-lite: "Fair Work Australia's inspectorate will have specialist divisions that can focus on persistent or pervasive unlawful behaviour in particular industries or sectors. The first divisions established will be for the building industry and hospitality industry".
Since the ALP conference, Rudd has stated that he will continue the ABCC - a police-state institution - until 2010!
AIRC AND FAIR WORK AUSTRALIA
ACTU calls for the restoration of the Australian Industrial Relations Commisssion to its former scope, and the abolition of the OEA, the Fair Pay Commission, and the ABCC.
Rudd's text suggests the abolition of those new bodies set up by recent governments, which take away some of the AIRC's former scope, but proposes to replace the AIRC outright with a new body called Fair Work Australia.
The exact powers of Fair Work Australia - other than disbarring industrial action, as noted above! - are not clear. But it is indicated that it will not have powers to arbitrate in industrial disputes unless the bosses wish it to. "Where agreement cannot be reached, bargaining participants... can jointly request Fair Work Australia help them reach agreeement, or jointly request Fair Work Australia determine particular matters". In other words, Fair Work Australia cannot conciliate or arbitrate unless the employer joins the union in a request to FWA to do so.
The ACTU, by contrast, reckons that the Commission should have powers of "last resort arbitration", which can be invoked without the boss's agreement.
Martin Thomas
One, protection for workers' conditions which they can claim or enforce by resort to public enforcement agencies or tribunals. Two, rights (embodied in law) for workers to organise, to be represented, and to take industrial action so that they can themselves claim or enforce better conditions at work.
Both are desirable. Even where a trade-union movement is extremely strong, some workers at the fringes of the economy will be unorganised, and it is advantageous to have laws which extend to them the conditions won by stronger groups of workers. Socialists were debating this as far back as the mid-19th century, arguing (including against some trade unionists, who thought it better to rely exclusively on enforcement by industrial militancy) that it was vital to demand that working hours be limited by law and not just by different workplace agreements.
But protection for workers' conditions via courts and tribunals is no substitute for the right of workers to organise to make and enforce our own claims. In Franco's fascist Spain the laws made it quite difficult for employers to declare redundancies; but independent unions had to organise underground.
The Liberal/ National government's Work Choices and BCII legislation has attacked both publicly-enforced workers' protections, and workers' rights to organise. In response the ACTU, in October 2006, adopted a wide-ranging set of demands for both protections and rights to organise.
In April 2007, Labor leader Kevin Rudd presented an industrial relations policy to Labor conference, and the union representatives there unanimously voted for it as an acceptable advance towards the ACTU's demands.
Rudd's policy falls very far short of allowing workers an effective right to organise and to take industrial action. In the other realm, of legal protections for workers' conditions guaranteed "from above", by the state, it is deficient, but much less so. Maybe that is why many leaders think it to be, in Paul Keating's words, "as good as it gets". But the whole experience of the working class under capitalism, and the whole nature of capitalism, tells us that protections "from above" are not sufficient without the right to organise "from below", and indeed require vigilant and lively organisation "from below" even to be enforced.
THE RIGHT TO STRIKE
ACTU policy asserts the right to strike. It insists that "legally protected industrial action should be available... without the need for a secret ballot", though of course "unions should not take action unless it has been democratically endorsed". It calls for the repeal of sections 45D and E of the Trades Practices Act, which ban "secondary" boycotts.
Rudd would restrict the right to strike probably more than it has ever been restricted in a universal-suffrage democracy. Industrial would be legal only during the bargaining period of an enterprise agreement; only for demands related to the agreement; only after an externally-conducted secret ballot; and never if it was "in support of an industry-wide agreement".
It would be illegal to respond with industrial action to bosses' attacks during the term of an agreement. It would be illegal to conduct solidarity or political strikes. It would even be illegal for better-placed workers in an industry to take action to improve conditions across the whole industry, including the more weakly-placed workers within that industry.
Even if industrial action is legal in Rudd's very restrictive terms, it can be made illegal. "Fair Work Australia will have the power to end the industrial action", even before it starts, if it "is causing or may cause" - notice, may cause - "significant harm to the wider economy".
It would be unlawful to compel employers to pay workers for days on strike. It would be quite lawful, however, to lock out workers taking industrial action, even, presumably, if it is only a work to rule or an overtime ban.
Under Rudd's proposals, enterprise agreements can run for four years (the ACTU proposes a maximum of three years). Thus, workers would be deprived of any legal right to resist or protest against what the boss does for as long as four years at a time.
THE RIGHT TO ORGANISE
The ACTU policy includes a substantial section on the right to organise. Learning from experience in the USA, it stipulates "a fast-track mechanism" for redress against victimisation of union activists, with "interim orders" to restore them to their jobs pending hearings. It calls for prohibitions on employers to offer inducements to deter workers from joining a union.
It requires rights of access to workers and to work sites for union delegates and union organisers. It requires bosses to give union delegates time and facilities to carry out their jobs, and to give them information.
None of that is in Rudd's text. There is only a sentence which reads: "It will be unlawful for anyone to try to stop a working person exercising this free choice by threats, pressure, discrimination, or victimisation".
And, in the context, Rudd may intend that sentence as the basis for legislation against picketing, or against unions expelling scabs, the "free choice" being "whether or not to join... a union, or participate in collective activities".
ACTU: "Employers should have a statutory duty to recognise and deal with a union representative acting on behalf of a member... Union members should have a general right to representation in discussions with their employer [on the whole range of issues]... The right of union members to representation should not be conditional upon the level of union membership at the workplace".
Drawing on US experience again, the ACTU correctly insists that union representation is a right for each individual worker, even if all his or her workmates are too scared to join the union; and, in order to break those other workers' fear, the union must have the right to be recognised by the employer - and not just at enterprise agreement bargaining time - and show its ability to defend workers as soon as it has the smallest foothold in the workplace.
Rudd: where there is collective bargaining on an enterprise agreement, "employees who are union members will be able to be represented by a union that is eligible to represent them". That's all.
COLLECTIVE BARGAINING
The ACTU proposes "a general obligation on all parties to bargain in good faith". The legislation "should expressly require the Commission to make good faith bargaining orders where a majority of employees support the collective bargaining process". The making of such orders should be "mandatory" - basically, compulsory for the Commission if the union can show any reasonable evidence (petition, mass meetings, whatever) of majority support in the workplace for bargaining. In all cases, the "party which is opposed to the collective bargaining process... should bear the onus of demonstrating why the Commission should not make an... order" to require good-faith bargaining.
Rudd's formula where bosses refuse collective bargaining? Fair Work Australia may (or may not) choose to determine the level of support for collective bargaining among the employees. It can decide how it does that. If FWA decides that there is majority support, then the "employer will be required bargain collectively..." The onus would be on those who support collective bargaining to prove their case, and even if they could, it would not be obligatory for the FWA to heed them.
Rudd's formula greatly weakens the pressure on bosses to bargain.
The ACTU stipulates "the ability for parties to engage freely in 'pattern bargaining', that is, to pursue common claims and outcomes in two or more single business agreements". It says that multi-employer bargaining should be allowed, and in some conditions (rather vaguely described) the Commission may compel employers to do multi-employer bargaining. Rudd says only that "Fair Work Australia may facilitate [?] multi-employer collective bargaining for low-paid employeees..." It may or it may not, and the employers may not choose to be "facilitated". Bottom line, for Rudd: no "industrial action in support of an industry-wide agreement" will be legal.
The ACTU policy specifically rules out "greenfield agreements" signed by unions with employers for a new workplace before there are any workers on site. Rudd's text specifically rules them in.
LEGISLATED MINIMUM STANDARDS FOR ALL WORKERS
* "A right to information and consultation in the workplace"
The ACTU stipulates this right, and spells out detailed requirements for bosses to give workers and unions information on company strategy and planning and the company's financial position; and to provide for at least two meetings to consult on these, in paid working time. Rudd's "minimum standards" include an item on "Information in the Workplace", but it requires bosses only to give new starters a standard leaflet about their rights and entitlements.
* "A statutory guarantee that workers' entitlements will be paid in the event of company failure"
The ACTU calls for this. Rudd offers nothing.
* Working week
Both ACTU and Rudd call for a 38 hour week. At first glance Rudd's formula even looks stronger: "Under Labor, the standard working week for a full-time employee will be 38 hours". The ACTU: "An average of 38 hours in ordinary time each week" (which leaves the option of, for example, some weeks being 76 hours and some zero hours, so long as they average out at the end of the year). However, any strength of Rudd's formula is immediately removed by the next clause: "Employees may be required to work additional hours". So, your working week is 38 hours, but... it could be more. Rudd adds that we "cannot be required to work unreasonable additional hours", but without definition of what might be "unreasonable" and who decides.
* Annual leave
Both ACTU and Rudd stipulate four weeks. The ACTU stipulates a fifth week for regular shift workers. Rudd, no. Both stipulate public holidays, with slight variations in detail.
* Parental/carers' leave
Both ACTU and Rudd stipulate 24 months parental leave. Rudd goes into more detail: the 24 months' unpaid leave can be shared between two parents. (Single parents only get 12 months). ACTU stipulates "right for parents of pre-school children to part-time work". Rudd leaves a large get-out clause for employers: "the right for parents to request flexible work arrangements until their child reaches school age. Employers will only be able to refuse... on reasonable business grounds". Both ACTU and Rudd stipulate ten days' paid personal/ carers' leave per year.
* Redundancy notice and pay
Both ACTU and Rudd stipulate this. Rudd lists more details, but would disqualify anyone in a workplace of fewer than 15 employees from any redundancy pay at all.
Rudd lists paid jury service leave as one of his ten "minimum standards", while ACTU refers to it as something established through "other legislation". Rudd also proposes a process of establishing a uniform national system of long service leave entitlements.
AWARDS
The ACTU calls for "no limits on the matters to be contained in awards". Rudd would limit awards to only ten (named) further items.
TRANSFER OF UNDERTAKINGS
ACTU wants a law to require bosses taking over a going business to respect the awards and agreements already in place there. Nothing from Rudd on this.
INDEPENDENT CONTRACTORS/ LABOUR HIRE
The ACTU calls for the repeal of the Independent Contractors Act 2006, and for legislation to guarantee workers employed as "independent contractors" the same rights and conditions as regular employees. It advocates that the Commission should have powers to deem some workers, employed as "sham" independent contractors, in fact to have employee status. It also states that an enterprise agreement or award "should apply to all workers performing the same work at [an] enterprise, including labour hire employees".
Rudd's text gives no commitments at all on these issues.
UNFAIR DISMISSAL
ACTU calls for all workers to have redress for unfair dismissal. Rudd would limit it to workers employed for six months or more, or twelve months or more if the employer has fewer than 15 employees. Rudd also says that reinstatement can be refused if it "is not in the interests of the employer's business". He also says, ominously, that "Labor will ensure that errors of a procedural... nature do not automatically result in the finding that a dismissal is unfair". Labor will write a Fair Dismissal Code, and if a small employer has complied with the Code (presumably, given warnings and so on), then the dismissal will be a fair dismissal. So, if the boss has gone through the formal procedures, the dismissal is fair, come what may; and even if he hasn't, his "errors of a procedural nature" won't necessarily matter.
STATE INDUSTRIAL RELATIONS SYSTEMS
The Rudd policy would abolish state industrial relations systems except for State government and local government employees - direct employees, that is, not workers providing State or local government services on a contracted-out basis.
The ACTU policy supports "provisions... enabling parties to opt to be bound by State industrial relations laws rather than the national legislation". There is no socialist principle, of course, for preferring State industrial relations systems to a federal system. But some unions find the possibility of switching to and fro between federal and State jurisdictions to be a considerable tactical advantage. They would lose that advantage.
ABCC
ACTU calls for the abolition of the ABCC and the straightforward repeal of the Building and Construction Industry Improvement Act.
Rudd's text appears to go along with these ideas. "Labor does not believe in separate industrial rules and regulations for different industries". But it also suggests an ABCC-lite: "Fair Work Australia's inspectorate will have specialist divisions that can focus on persistent or pervasive unlawful behaviour in particular industries or sectors. The first divisions established will be for the building industry and hospitality industry".
Since the ALP conference, Rudd has stated that he will continue the ABCC - a police-state institution - until 2010!
AIRC AND FAIR WORK AUSTRALIA
ACTU calls for the restoration of the Australian Industrial Relations Commisssion to its former scope, and the abolition of the OEA, the Fair Pay Commission, and the ABCC.
Rudd's text suggests the abolition of those new bodies set up by recent governments, which take away some of the AIRC's former scope, but proposes to replace the AIRC outright with a new body called Fair Work Australia.
The exact powers of Fair Work Australia - other than disbarring industrial action, as noted above! - are not clear. But it is indicated that it will not have powers to arbitrate in industrial disputes unless the bosses wish it to. "Where agreement cannot be reached, bargaining participants... can jointly request Fair Work Australia help them reach agreeement, or jointly request Fair Work Australia determine particular matters". In other words, Fair Work Australia cannot conciliate or arbitrate unless the employer joins the union in a request to FWA to do so.
The ACTU, by contrast, reckons that the Commission should have powers of "last resort arbitration", which can be invoked without the boss's agreement.
Martin Thomas
posted by IWSG @ 07:54
0 Comments:
Post a Comment
Subscribe to Post Comments [Atom]
<< Home