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Issue #1740      July 20, 2016

Union rights

The battle ahead

The Abbott/Turnbull’s Australian Building and Construction Commission (ABCC) is a reincarnation of former PM John Howard’s ABCC, but with additional draconian, anti-union measures. It imposes hefty penalties of $36,000 for individuals and $180,000 for trade unions for each offence. These are three times higher than for other workers under the Fair Work Act.

Rallies around Australia in 2010 in support of Ark Tribe who faced charges brought by the ABCC. (Photo: Anna Pha)

Some one million workers would be affected as the Bill extends the ABCC’s reach to all workers that supply, transport building goods directly to building sites (including resource platforms) or prefabricate manufactured goods on- or off-site. This includes ships travelling to and from Australian ports.

The ABCC bill also narrows the definition of “protected action”. If anyone who is not a member of the union (bargaining representative) or not covered by the enterprise agreement being negotiated takes part in the action, it becomes “illegal”.

All an employer needs to do is plant a stooge who does not join the union and participates in the action for it to become “illegal” and the hefty fines kick in.

Workers could lose their homes.

Community pickets outlawed

For the first time, the ABCC bill outlaws pickets, including community pickets. If the “motivation” of a picket is for the purpose of supporting or advancing claims against the employer in respect of the employment of workers or the engagement of contractors or the objectives of a union, it is “illegal”.

Hefty penalties kick in and members of the community as well as workers and their union could also be sued for damages by any employer affected by the picket.

This extends the legislation beyond the employer-employee relationship, beyond union solidarity actions, to ordinary civilians who may wish to demonstrate their support. They face the same hefty penalties as workers.

The onus of proof is reversed. The person facing the court must prove that their motivation had nothing to do with a dispute or other union-related matters. (See “The Australian Building and Construction Commission Mark II: Gestapo industrial relations laws”, the Guardian, 27-04-2016, #1728)

The Bill seeks to criminalise legitimate trade union activity.

It retains the coercive and policing powers of the Commission. Failure to appear, to answer questions, take an oath or affirmation, or produce documents is considered to be a criminal offence – hindering Commonwealth officials under the Criminal Code – punishable by six months jail. Jail is mandatory, not optional.

There is no right to remain silent and no privilege against self-incrimination. In addition, workers may be expected to recall details of events two or more years ago!

New IR system

The Coalition has plans for a new industrial relations system, which it claims will protect vulnerable workers. It plans to give compulsory evidence-gathering powers to the Fair Work Ombudsman similar to those currently held by the ASIC, the ACCC and the ATO. (It could add ABBC to that list.) “This [is to] overcome the culture of fear that often prevents vulnerable workers from coming forward and giving evidence.”

It will also introduce new penalty provisions relating to the obstruction of Fair Work Inspectors and the provision of false or misleading information to Fair Work Inspectors.

Wage fixation and the determination of working conditions will be deregulated. This includes the gutting of awards, restrictions on the content of enterprise agreements, non-union individual employment contracts and further restrictions on the right of entry and the ability of trade unions to organise and recruit members.

The individual employment contracts, employer-employee flexibility agreements, will in practice be no different in outcome to Howard’s Australian Workplace Agreements (AWAs).

While promising workers higher wages and better conditions, Howard’s WorkChoices and AWAs resulted in more than a million workers who were on awards suffering real pay cuts of up to $100 a week because of changes to the way minimum wages were set.

Hundreds of thousands of workers were pushed onto AWA individual contracts:

  • 70% of workers lost shift loadings
  • 68% lost annual leave loadings
  • 65% lost penalty rates
  • 49% lost overtime loadings.
  • 25% no longer had public holidays.

More than 3.5 million Australians lost protection from unfair dismissal and unknown numbers were sacked or treated unfairly and had no recourse.

The Turnbull/Abbott government will be no different if it gets its way. Penalty rates will be one of the first casualties.

Competition policy

One of the most pernicious plans is to put trade unions on a similar footing to large corporations with a greater role for the Australian Competition and Consumer Commission (ACCC).

The recommendations of the Harper review of Competition Policy, which the government has largely adopted, recommends that enterprise agreements could not contain clauses that restrict employers in relation to acquiring services from contractors and labour hire.

For example, an EBA might contain a clause obliging an employer to engage or deal only with those contractors who apply wages and conditions no less favourable than those provided for in the agreement. Such a clause would no longer be permitted.

These clauses are extremely important, as they prevent the undermining of union agreements and a race to the bottom with wages and conditions. On construction sites, for example, where there is extensive use of contract labour, it would remove any advantages for a contractor to hire non-union labour and 457 Visa workers.

Harper sees such clauses as “anti-competitive behaviour” as defined under Section 45E of the Competition and Consumer Act 2010 (CCA). At present union agreements are exempt under the Act. The trade union Royal Commission, the Productivity Commission and Harper review all recommended that that exemption be removed.

They also recommended that the maximum penalty for breaches of Section 45 of the Act, including secondary boycotts (45D-DE) which do apply to trade unions be increased from $750,000 to $10 million!

Cartel provisions of the CCA would also apply for such activities as pattern bargaining (same or similar claims for different workplaces or employers).

The government also plans to make it more difficult for union organisers to obtain entry permits to workplaces and mandatory suspensions for breaches of permit conditions. For a third offence the suspension would be 10 years.

The Registered Organisations Bill, one of the two trigger bills for the double dissolution elections, would establish a Commission to police trade union finances.

Unions can expect restrictions on how they can spend their funds, including a ban or barriers to making political donations and spending. This is aimed at the Labor Party in particular.

The trade union movement has the fight of its life and for its life ahead of it. As a first step it is vital that the joint sitting of the two Houses defeats the ABCC and Registered Organisations Bills. This requires considerable work in lobbying cross-benchers of both Houses. A number of conservative Senators and Independents have been elected.

Next article – Black Lung: Tip of iceberg

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