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Issue #1795      September 20, 2017

For working class solidarity

In their offensive against the trade union movement and workers, the Turnbull government and capitalist media have singled out the building and construction unions and the Maritime Union of Australia (MUA) for special treatment. As two of the most militant unions, the aim is to break them and then move on to destroy the rest of the movement.

Warren Smith is the assistant national secretary of the MUA and a member of the Central Committee member of the Communist Party of Australia (CPA). Vinnie Molina is the WA president of the CFMEU Construction Division and national president of the CPA. These two union officials confront this struggle on a daily basis. They took time out to speak to the Guardian. In Part 1 of this two-part interview Warren talks to Anna Pha about the legislation that is restricting the capacity of unions to fight for their rights.

Warren Smith.

Warren Smith: The current situation for unions and workers can be characterised by the phrase “a war on workers”. That is not an exaggeration in so many respects.

Firstly, people die in wars and workers are dying on a daily basis in this country because of the boss’s complete lack of commitment to safety laws where they exist. We see a reduction of safety standards putting the lives of workers on the line.

The Australian Marine Safety Authority (AMSA), for example, has just reduced maritime safety regulations to guidance material for wharfies.

When workers are told to do a job unsafely, it is compounded when there is a lack of capacity to stand up and fight back because of the extreme limitations of the Fair Work Act.

The Fair Work Act is broken for workers but not for the bosses.

We need to engage in a struggle to build a broad movement and change the Fair Work Act. We need to fight to see basic rights for workers, enshrined in law, to give working class people the maximum capacity possible within this horrible capitalist system that we operate within.

At the moment the Fair Work Act doesn’t deal with things like contracting out. So new contractors can come in, put a contract on for $10,000 less, and $10,000 comes off the wages. You’ve got no rights then with respect to transferring old workers into new operations. There are limitations on collective activity aimed at restraining the class.

Act fails workers

The Fair Work Act allows the boss to slash wages without the capacity for any legal opposition. We are seeing that sort of stuff happening all over the place. When workers fight the Act says you are taking illegal industrial action, because nearly every action is illegal and it works to shut down struggle.

Workers are taking action and are fighting back. But what we see are massive fines and damages, and laws that allow employers to breach agreements but prevent workers from stepping one centimetre over the line.

If workers are seen to be breaching their agreements they are generally taken straight into the Fair Work Commission, they usually get 418 orders to cease that action. In fact the Commission is obliged to give the orders if there is a sniff of activity. Workers face hefty fines and are pursued in the Federal Court as criminals for protecting their families future.

Anna Pha: What are 418 orders?

WS: 418 orders refer to section 418 of the Fair Work Act which provides employers with the capacity to stop workers taking what is deemed illegal industrial action.

There is nothing that stops the employer breaching agreements. Employers seem to breach agreements at will. Anything but following due process is generally considered unlawful so you end up in the Fair Work Commission (FWC) where the principle of employer prerogative is enshrined. Generally speaking, you don’t end up with a happy situation for the workers or the union.

That undermines your whole bargaining capacity. So even if you can bargain for an agreement, the employer can just say, “I’m not going to adhere to it.” The Act doesn’t give workers the right to change agreements and doesn’t allow workers to fight back when aggrieved. We need to change the laws.

There needs to be the legal right to strike, to withdraw your labour – a fundamental right – without jumping through all the hoops and all of the charade that the present “protected action” throws up. That means without the AEC ballots, the obligatory three days’ notice, only during bargaining and after termination of a current agreement and so on.

While the bureaucracy churns the employer can plan their business during the three days’ notification, particularly on the waterfront, because the ship doesn’t come in for another three days or is moved.

The bosses can manipulate the limited rights we have to take “protected action”. That is not to say that taking action is ineffective. They hate it when workers take action. It’s just not effective in its capacity to make positive and long-lasting changes for workers.

Employers are coming out attacking. Workers are defending their position but it is only during a bargaining period for a new enterprise agreement that workers can take “protected” action to defend their wages and working conditions.

But during the life of an agreement no such legal rights exist.

AP: So, it’s illegal to take any form of industrial action when an agreement is in place?

WS: Yes. Any form of industrial action is illegal most of the time. Even during safety disputes bosses will run the line that it is illegal industrial action. That is a consistent challenge for workers. The struggle to change the laws is an important class struggle.


The other element that employers, or really a Labor government, put in place is enterprise employment. It was an Accord (Prices and Income Accord) concept that split industries apart and tore away the capacity of trade unions to have broad power across an industry.

Workers were hived off into enterprises without the right to take solidarity action. If you remove workers’ capacity to give solidarity to one another, which is a fundamental thing for working class people, then enterprise employment is just like putting people in separate enterprise jails and letting them fight the class struggle and deal with their employer in a completely segregated manner without the solidarity of their class.

And that is what enterprise bargaining is all about. We need to change those laws so that workers have the right, even if it is about a political issue, to take strike action and to organise across industries.

Accord era

AP: You mentioned the Accord. What was the Accord and why do you refer to that period?

WS: I constantly refer back to that period because I think it is central to where unions are now in terms of the legal framework and ideological awareness. It was an agreement, a social contract between the Hawke and Keating Labor government(s) and the trade union movement to cooperate with employers.

It’s contradictory. Some people are critical of the Accord in some respects but so often people who criticise it tend to put forward policies that are consistent with those class collaborationist views that the Accord threw up.

The Accord, based on the premise that there is a possibility for workers, employers and the government to sit around a table with common interests, is the great class lie. You don’t just sit around those tables with the government managing the state, we need to recognise the state is a tool of the ruling class.

Some people say many of the outcomes that were delivered over the period of the Accord – Medicare, free tertiary education, superannuation – were great positive developments. Medicare probably was, superannuation is probably debatable on an ideological level as historically in a negative sense I think it reflected the privatisation of the pension in many respects.

Those things are put up as the wins of the Accord period when really even the victories don’t outweigh the great shift of wealth away from the working class. From 1983 we have seen a massive decline in trade union density. We’ve seen a massive disparity in the distribution of wealth where wealth gravitated towards the rich at an unprecedented level. And we’ve seen a huge curtailment in industrial action.

Those three things are absolutely linked. Unions were put in a position where workers couldn’t or wouldn’t fight because of the Accord relationships, strikes and struggle were reduced to record lows and hence the distribution of wealth gravitated towards the rich.

And that is part of the way things are now: yes there is a place for unions in society as long as they don’t struggle, as long as they obey the laws that are completely and totally directed towards the interests of the employers that want to put unions out of business. Then we can accept unions.


AP: Is safety a big issue on the waterfront like in the construction industry?

WS: It is a massive issue in the maritime industry and it is fundamentally an industrial issue. Regulations and laws governing stevedoring safety are actually being weakened. We fought hard and won a national code of practice for stevedoring but a code is not legislation and the safety of workers must be strongly enshrined in law. It isn’t.

We are seeing a pure government attack on workers, what the government calls a reduction of red tape – red tape meaning protecting people’s lives ultimately.

AP: Can you give an example of what this means in practice?

WS: It means ultimately workers are less safe. Statistics are fudged, injuries are hidden, especially in non-unionised areas.

Basic and critical safety jobs are under threat constantly in most industries. Employers engage at the highest levels within the corporate state and federal safety regulators. Safety regulators are not resourced or directed to take on the real non-compliance issues that exist but merely become a complaint department.

Vinnie Molina.

Industrial manslaughter

AP: Vinnie, it seems that construction workers and their unions are having similar difficulties in protecting safety and enforcing agreements when employers breach them?

Vinnie Molina: Correct. It is a war on workers, a war on jobs.

Most of the disputes that workers deal with in construction are dealt with in civil courts where workers and unions get massive fines, rather than in an industrial court.

In Western Australia we’ve got more than 500 workers who have been charged and many of them fined. I must say that not a single worker has paid a dollar in legal fees or fines. The union has been able to fund-raise to pay for the fines that were imposed on workers and their families.

The union has also copped millions of dollars in fines. The whole objective of this legislation is to destroy the unions. Warren mentioned how Turnbull talks about unions not doing their job and that unionists who stand up for their members are criminals.

There are several examples of this in WA. The government is happy to deal with yellow unions who don’t do their job, but when militant unions like the CFMEU and MUA are there representing their members it is a different story.

In response, the Turnbull government has ramped up legislation to further restrict the trade union movement and its members. They reintroduced the full powers of the Australian Building and Construction Commission (ABCC) that prevents the organising of workers, prevents the officials coming into contact with workers to recruit new members, prevents officials entering workplaces for safety issues and impose heavy penalties if workers dare to take action.

We’ve got the example of Hanssen Constructions where on October 10, 2016, a young German back-packer fell to her death from the 15th floor. No fall protection, no access to the site, where the union had previously identified shortcomings in safety the union official was prevented from accessing the site.

One of the problems is that the local Worksafe is reactive. They never make visits. They don’t pay attention to safety on the jobs. A young woman died unnecessarily and the builder has not been charged with anything. There is no industrial manslaughter legislation in Western Australia and other parts of Australia and that is a must.

Negligence kills

Employers whose negligence kills workers must be charged, must go to jail.

Currently the fines are very small which only encourages employers to put workers at risk because it is more expensive to improve safety than replace a worker in the workplace.

AP: Vinnie, the Turnbull government has increased your fines in the building and construction industry to ten times those under the Fair Work Act.

VM: Yes, the fines have been increased. An example of this is the dispute that we had at the airport in 2013. After the workers had been robbed of their wages and entitlements, they had had enough and stopped the job. The union held negotiations on behalf of the workers and recovered $480,000 in unpaid wages and entitlements.

We copped a fined of $23,500 from the court, then on appeal the ABCC actually won an extra fine that increased it by tenfold to a disgusting $240,000.

AP: So the higher fine was retrospectively applied under the new legislation which came into force this year?

VM: Correct.

WS: So this is part of this war on workers, war on unions. That’s an absolute deliberate, targeted, strategic approach to de-unionising the construction industry and every other unionised industry and workforce.

Where bosses can’t replace unionised workers they relentlessly attack the unions and workers. You can’t get rid of construction workers. You can’t get rid of wharfies. So they seek to keep those workers in chains.

As for ships, they are replacing Australian seafarers daily with low cost foreign ships and highly exploited third world crews. There is no way Australian workers who have struggled over many, many, many decades to win wages and conditions that are consistent with a good standard of living in Australia can compete.

You can’t compete on an Australian wage with some poor worker who gets paid $2 an hour. Industries are destroyed, families and people are destroyed and this government is prepared to deliberately destroy whole industries, strategic industries for an island nation to destroy a unionised workforce.

We are talking about Australia’s independence. The whole of Australia’s trade is in the hands of foreign shipping conglomerates. Why shouldn’t Australia be able to control its own trade security, and have our own industries that can provide for that safety and security of the people.

It comes down to a common-sense approach, whether governments are prepared to adopt a protectionist approach to protect the interests of a vital strategic Australian industry. Governments must adopt a protectionist approach to protect and develop shipping.

This is where this neo-liberal hate of protectionism has got to be thoroughly argued out and shown and demonstrated to be against the interests of the Australian people.

“Free trade” is in the interests of big corporations.

VM: The laws currently in place have to be changed, have to be repealed. Warren spoke about the shortcomings of the Fair Work Act but there are other issues, for example, labour hire.

Immigration and Free Trade Agreements really affect WA workers because when, for example, they come to Western Australia they can work in dangerous occupations like construction.

We love to receive these young people here, but they should be able to work in occupations where they don’t put their lives at risk, such as in hospitality or fruit picking. We condemn the case of the 27-year-old German woman who had had no experience or training, went onto a building site and died.

We are trying to stop this. Temporary visa workers come to Australia, are exploited and are used by companies as a way to undermine local wages and conditions and that has to stop as well.

The Turnbull government recently changed the name of the s457 Visa and just replaced it by another number, a populist approach not a solution. Those workers are welcome if there is a genuine shortage but must enjoy the same wages and conditions as local workers.

Fair Work Act must go

The law has to be changed and replaced with an industrial law that works for working people. The whole Fair Work Act which was drafted by bosses’ lawyers has to go. That should be the new call from unions and the key commitment made by the ALP.

WS: That should be the demand going forward. I’ve been really encouraged by the comments out of the ACTU. It’s progressive with its recognition that workers must stand up and fight bad laws and we are dealing with bad laws.

And that call should be translated into action in the broadest possible sense against the government and the Fair Work Act in the interests of workers’ rights in this country. No union or group can do this alone because they would be smashed.

Next week in Part 2 of this interview Molina and Smith continue discussing the war on workers, the necessity of new industrial relations legislation and the question of united community and trade union struggle.

Next article – Hurricanes Harvey and Irma – The storm of climate denial

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