"Work Choices is tantalisingly close to being gone forever", Labor's workplace minister Julia Gillard said as she introduced the Fair Work Bill (FWB) on November 25.
While the FWB does curb some of Work Choices' excesses, it maintains its essence by proscribing what is "acceptable" union behaviour and establishing big penalties for those who disobey.
The FWB may help unions increase workers' security on the job and remove obstacles to them joining unions, but the right to strike, union officials' right of entry and the right to seek compensation for unfair dismissal remain severely restricted. Industry-wide (pattern) bargaining, industrial action for political reasons and the right to negotiate on social or environmental matters are still outlawed.
While unions are guaranteed a role in the negotiating process, their ability to fight for their members' interests remains curtailed. The Australian Building and Construction Commission — Howard's secret police in the building industry — remains in place.
The FWB divides those unions prepared to use whatever means necessary to fight for their members' interests from those willing to accept Labor's enterprise-based bargaining model.
Yet, Australian Council of Trade Unions (ACTU) secretary Jeff Lawrence said that the new IR proposals are "definitely not 'Work Choices Lite'". "It is becoming crystal clear they will give Australian workers a comprehensive suite of new legal rights and protections", he told the November 17 Australian.
But the FWB does not even restore to workers all the rights that the International Labor Organisation identified had been stolen from them by the Workplace Relations Act (1996) and Work Choices.
On November 25, ACTU president Sharan Burrow said that unions remained concerned and that, "We will never stop pushing for improvements in the workplace".
What did the ACTU's lobbying of Gillard achieve?
Rules restricting union officials' right of entry to workplaces have been relaxed, yet permits licensing officials as "fit and proper persons" to exercise right of entry remain.
Requirements for 24 hours' notice remain, although exceptions may be granted by Fair Work Australia (FWA) — Labor's replacement for the Australian Industrial Relations Commission. The boss will still be able to determine where and when a union official may meet with workers — but
that power must be exercised "reasonably".
Work Choices' distinction between union collective agreements and non-union collective agreements will be abolished. Unions will be a guaranteed party to all collective agreements in workplaces where they have at least one member. Bosses will no longer be able to exclude unions completely from negotiations, as happened this year in Cochlea and Telstra.
Unions will also have a guaranteed role in negotiating all greenfield agreements. Under Work Choices, bosses could set any conditions that were consistent with basic minimums and then begin employing staff.
The FWB restores workers' right to stop work on occupational health and safety grounds. Workers will no longer have to prove that the site was unsafe should the action be legally challenged. The boss will have to prove that the workers were lying.
But FWB ensures that power in the workplace remains with the bosses.
Most significantly, strikes remain illegal at any time and for any reason during the life of an enterprise agreement. Workers taking industrial action during an agreement (including a stop-work meeting) must be docked at least four hours' pay. If they refuse a FWA order to return to work they risk fines of up to $6600.
Strike action to secure an agreement is legal — but not before the expiry of an existing agreement. To have FWA agree to it, a union must be able to prove that it has been "bargaining in good faith". It must also conduct a secret ballot of its members to approve the strike.
FWA can halt industrial action if it considers it is causing "significant economic harm", or if it thinks that the union is engaging in industry-wide (pattern) bargaining. Third parties — companies that are being affected by industrial action at another company — may also apply to have a strike stopped.
The FWB limits unions' right to defend their members at the enterprise level. Any attempt to use the strength of bigger sites to win concessions at weaker sites — the essence of effective, democratic unionism — remains illegal. Solidarity actions (secondary boycotts), or taking industrial action in pursuit of industry-wide agreements, are banned.
The FWB overturns the prohibition on workers in companies employing fewer than 100 people from claiming unfair dismissal. However, pre-Work Choices rights are not restored. Workers on small sites (less than 15 people) may not claim unfair dismissal until after 12 months' service. The restriction is six months for larger workplaces.
Even if they do win a case, the maximum compensation a worker may receive is capped at six months' wages.
Labor has also moved to strip awards of conditions. While it has abolished statutory individual contracts (Australian Workplace Agreements), its "simplification" of awards means that every "modern award" and enterprise agreement must contain an "individual flexibility arrangement", which will allow bosses the right to seek individual agreements with workers. These agreements may include the buy-out of overtime and penalty rates.
The FWB only slightly relaxes Work Choices "prohibited content" rules for enterprise agreements. The deduction of union dues and provision for trade union training leave will now be permitted.
However agreements relating to environmental issues, or other areas of "managerial prerogative" will be illegal, as will any conditions calling for compulsory union membership, the payment of union bargaining fees for non-members or that allow industrial action during the life of an agreement.
Labor's new law invests FWA with the right to arbitrate an agreement in limited circumstances. While considered by many to be the sign of a "fair" industrial system, the power of arbitration is only used as a last resort by the state — usually to limit the gains that unions may make through industrial action.
The legislation restricts the criteria the FWA has to apply in arbitrating disputes. It requires FWA to take account of "the public interest" along with "how productivity might be improved in the enterprise or enterprises concerned" in making a workplace determination. There is no requirement to ensure fair wages or conditions.
A good measure of the FWB is the bosses' criticism, or lack of it. For Australian Industry Group CEO Heather Ridout, the FWA bill is "a workable compromise" in which "important protections for employers" have been put in place.
Workers beware.