The Guardian 31 January, 2007
WorkChoices works for capitalism (Part II)
Paul Matters
In the first article in this series (Guardian 24-01-07, No 1304) we discussed why the Work Choices legislation was introduced:
1. as a response to a fundamental crisis in Australian capitalism, namely the trend for the rate of profit to fall over a long period of time;
2. to enforce their counters to the falling rate of profit. This is done by increasing the exploitation of labour through the intensification of work; also by the extension of working time. The real value of the workers’ share of production is lowered by wages remaining constant or falling while the value produced is increased.
WorkChoices has created the mechanisms for capitalists to respond much more quickly and effectively to the crisis. This has been achieved by greatly increasing the power of capitalists, both individually and as a class against workers. This is achieved in two principal ways, through extremely oppressive contracts and by suppressing the right to strike.
The new laws muscle up AWAs
WorkChoices has created six types of lawful industrial agreements called "workplace agreements". Australian Workplace Agreements (AWAs) have been retained and beefed up. The old non-union collective agreements have become "employee collective agreements". Then there are "union collective agreements", "union greenfields agreements" and a new alternative called an "employer greenfields agreement".
The employer greenfields agreements really gives the game away in regard to the non-union agreements not involving any negotiation as these agreements will presumably have to be struck before there are any workers on site. Finally there is a "multiple-business agreement" which enables a collective agreement to be made with more than one employer, but only after it is determined to be in the public interest.
The various categories of agreements are part of a hierarchy with a workplace agreement prevailing over any award even while it is still in operation. Only one workplace agreement can apply to an employee. At the top of the hierarchy is the AWA which trumps all other forms of workplace agreement at all times.
These AWAs are an extremely coercive form of employment contract and are at the very centre of the new law. WorkChoices did not create individual contracts. Australian capitalism has had individual contracts for workers for many years. It is the form and the characteristics of the new individual contracts that are so important and greatly increase the power of capitalists against workers.
In reality they are not individual contracts at all. They are really contracts that individual workers are coerced to submit to against the collective power of capitalists. They are contracts that express naked capitalist class power against an individual worker and greatly increase capitalist power against the working class as a whole.
They do this in a number of ways:
They are "pattern" or form contracts
A central feature of a common law contract is that it is negotiated between the parties. There is considerable evidence that AWAs are not negotiated at all. They are simply offered to workers by bosses and accepted without any changes. The AWA is drafted by management and presented to employees. This lack of negotiation has been found in the mining, hospitality and other industries, and is supported by research of Federal Court cases involving allegations of duress.
Common law contractual principles have in the past enabled parties to reach agreement on a broad range of issues. While there is considerable law in regard to the making of commercial and consumer contracts and their enforceability it is mainly protective of the weaker parties on public interest grounds. This throws into sharp relief the fundamentally oppressive nature of WorkChoices contained in the number of matters that are prohibited from being in an AWA.
Whereas in a common law contract a worker and a boss could possibly agree that the worker not be sacked unfairly and be given access to union information and deduct union dues and go to union training, it is unlawful to have these matters in a workplace agreement.
Because AWAs are not being negotiated they are a violation of the accepted process of negotiating a contract between parties. If this concept of non-negotiated contracts were to spread to other areas of the economy it would have devastating consequences in many aspects of every capitalist society. There are indications that AWAs are not being welcomed in some sections of the capitalist class for this reason.
The right to strike is outlawed
A review of recent WorkChoices amendments suggests that the ability of AWA employees to take protected industrial action over AWAs has been abolished since all references in the amendments relate only to protected action taken in support of a collective agreement.
In any case, one may wonder just how much leverage a striking individual employee could exercise, particularly in the light of the employer’s option of locking out an employee without pay. The Office of the Employment Advocate (OEA) has advised that there has not been any employee-initiated industrial action taken in relation to an AWA. In contrast, a number of employers have used the provision to induce employees to sign an AWA.
An employee covered by an AWA cannot participate in any industrial action until the nominal expiry date of their AWA has passed. Further, where a collective agreement is being negotiated, the AWA employee cannot be included in the roll of voters for a ‘protected action’ secret ballot if, "on the day the ballot order was made, the person was bound by an AWA whose nominal expiry date had not passed".
AWAs are strong arm contracts
Under the common law of contract, duress or unreasonable pressure through threats will make a contract invalid and unenforceable. This does not apply to AWAs. While duress is said to be ruled out it has also been ruled that a boss hasn’t used duress "... merely because the person requires another person to make an AWA as a condition of engagement".
The take it or leave it basis of the contracts has been criticised by the International Labour Organisation which declares that legislative provisions which have the effect of denying workers the ability to insist on having their terms and conditions of employment governed by collective agreements are in breach of ILO Conventions 87 and 98. These conventions protect the right to strike and collectively bargain.
Offering employment on the condition that a person enter an AWA could constitute duress if other factors were present, for example, if there is a pre-existing relationship between the parties. Certainly this was the interpretation of the ACTU Secretary Greg Combet who commented that "there is absolutely nothing to stop employers coming into a workplace ... on any day — even if there is a collective agreement in force or an award in force — and saying ‘sign this and, by the way, your penalty rates are gone’. It will happen. It is possible under these laws" (Workplace Express 2005).
Workers, especially during times of low unemployment, while having a "choice" about which employer they might sell their labour power to, have no choice about working for the capitalist class. The real oppressiveness of WorkChoices can only been seen in connection with its effective stripping of the rights and conditions of collective agreements.
No disadvantage test abolished
Previously a "no disadvantage test" which required bosses to demonstrate that the individual agreement did not reduce important minimum conditions found in awards and other collective agreements. Some States, such as Western Australia, had already removed the "no-disadvantage test". That experience has clearly shown that once this floor is removed, workers on individual contracts fare much worse than those on collective agreements, and many fell below the minimums provided by awards. When accepting an AWA the so-called Employment Advocate is "not required to consider or determine whether any of the requirements ... have been met in relation to the making or content of anything".
Little use of bargaining agents
WorkChoices retains the ability of both the employer and employee to request a bargaining agent to be involved in the making, variation or termination of an AWA. There are no limits to who can be a bargaining agent, however, for an agent to be recognised, they must be validly appointed, which includes in writing. If the agent has not been duly appointed, there is the ability for the employer or employee to refuse to recognise the bargaining agent, but otherwise, a duly appointed bargaining agent must be recognised by the other party.
Both the pre-reform provisions and the WorkChoices amendments require the employer to provide an information statement to an AWA employee which contains information on their right to use a bargaining agent. Despite this requirement, case study evidence suggests that often employees are unaware of their right to have someone assist in the negotiation of their AWA.
Regardless, if they had been aware of such a right, many employees have commented that they would not have used an agent and as early as 1998, data confirmed that nearly all AWA "negotiations" did not involve a bargaining agent (91.8 per cent).
The conclusion can be drawn that AWAs are rarely negotiated at all — they are simply offered to employees by employers and accepted without any substantive change. Evidence shows that AWAs are drafted by management and presented to employees.
Even if unions were to increase their participation as bargaining agents, their ability to effect real change in AWA negotiations is unrealistic in most cases.
Conclusion
It has been claimed that the use of AWAs "will enhance the ability of employers and employees to enter into flexible and productive workplace arrangements, tailored to suit individual needs". However, since AWAs first became available in March 1997, there has been a proliferation of pattern AWAs and very little evidence of individual tailoring of wages and conditions of employment.
If high performance workplaces are the aim of the reforms, it could be expected that a review of AWAs operating under WorkChoices will reveal high wages and good working conditions. The evidence from the experience of AWAs over the last nine years suggests that this outcome is highly unlikely.
Employers have welcomed the changes to the making of AWAs and the experience suggests that the simplification of the approval process and the removal of the vetting of AWAs has exposed employees to AWAs which contain low wages and very limited conditions of employment. It is clear that for some employees AWAs will be to their significant detriment.