On September 17, federal IR minister Julia Gillard unveiled Labor's "new" industrial relations system based on the IR policy it took to the federal election, Forward with Fairness (FwF). But rather than "tear up" Work Choices, Labor's pre-election promise, its replacement IR system largely preserves it.
The union-led Your Rights at Work (YRaW) campaign against the hated anti-worker Work Choices laws involved hundreds of thousands of workers who organised in their workplaces and communities and took to the streets in a series of large demonstrations between June 2005 and November 2006.
Workers wanted to get rid of then-PM John Howard and his laws, and the campaign against the laws was critical to Howard's defeat. The Australian Council of Trade Unions leadership sought to narrow down the YRaW campaign to just getting Labor back into power — a reason for its refusal to sanction national anti-Work Choices rallies in 2007, election year.
In a televised speech from the November 30, 2006 protest at the Melbourne Cricket Ground (MCG), the then ACTU secretary Greg Combet all but said a vote for Labor would be the final step in defeating Work Choices. Four days later, Kevin Rudd was installed as ALP leader, and Gillard was elected his deputy and shadow IR spokesperson.
But far from "tearing up" Work Choices, Labor's biggest reform was to abolish Australian Workplace Agreements (AWAs) in March. They have been replaced with a commitment to enshrine "individual flexibility" in all enterprise agreements and in the "modern" (read: stripped back) award system that will allow bosses to make individual deals with workers by the back door.
Right of entry restricted
Under Labor's IR laws, union organisers' right of entry will remain curtailed. All strikes outside of a bargaining period for a new collective agreement will be illegal. Strikes will only be "protected" following a successful secret ballot, organised by the Australian Electoral Commission, and having given the boss three days' notice.
For any stop-work action outside of a bargaining period workers must be docked four hours' pay, at a minimum. Payment of strike pay will remain illegal, whatever the cause of the strike.
Taking industrial action in pursuit of an industry-wide (pattern-bargaining) claim will remain illegal. Workers do receive the right to collectively bargain, but only where a majority in any workplace agree.
But while bosses can be compelled to negotiate "in good faith" with their workers, the rules requiring bosses to negotiate a union collective agreement are weak.
Labor's new "independent umpire", Fair Work Australia (FWA), will largely be stripped of the power to arbitrate an agreement.
"Arbitration will be limited to exceptional circumstances only — where industrial action is causing a threat to safety or health, a threat to the economy, or significant harm to the parties", Gillard told the National Press Club on September 17.
The power of arbitration will be retained but used only to intervene on behalf of the bosses where unions look like getting a good deal for their members.
While Labor's laws tinker with reintroducing the right to challenge unfair dismissal, they leave the power firmly with the bosses. A worker in a workplace of 14 or less employees must serve a 12-month probation before they can claim unfair dismissal on any account (the waiting period is six months in larger firms).
To satisfy FWA that a sacking was fair after 12 months, the boss of a small business only has to provide one (verbal) warning, or cite concerns of violence or theft, and the worker is gone. Even in cases where the worker can prove unfair dismissal, any compensation is capped at six months' wages.
Labor has modified some of the "prohibited content" under Work Choices that prevented the deduction of union dues being part of collective agreements. However, as Gillard put it, "Matters that are properly the prerogative of management — like decisions about closing an unprofitable plant or using a preferred supplier — will not be included in enterprise agreements, as has always been the case".
On September 17, ACTU president Sharan Burrow described FwF as "the important next step ... towards scrapping Work Choices and restoring the rights of Australian workers". But she was critical of FwF for failing to include compulsory arbitration and for not lifting all restrictions on prohibited content.
She described as "harsh" and "counter-productive" the requirement that employers deduct four hours' wages for unprotected industrial action saying it had "the potential to turn a half-hour strike into a half-day one".
Burrows also criticised restrictions on access to unfair dismissal claims by workers employed by small businesses, but was silent on the continuing restrictions on union officials' right of entry.
Construction industry police
While Labor has promised to abolish the Australian Building and Construction Commission, the Howard government's secret police force in the building industry — but only in 2010 — Tim Gooden, Geelong and Regions Trades and Labour Council secretary, told Green Left Weekly that from his reading of Labor's IR blueprint, Labor seems intent on extending ABCC inspectors to the whole work force.
Other unionists who spoke to GLW were similarly angry about Labor's new laws. "The Australian public voted against attacks on workers' rights: they want our rights restored", said Steve Dargavel, Victorian state secretary of the Australian Manufacturing Workers Union.
"The litmus test for the YRaW campaign is whether Labor's Forward with Fairness legislation will not only be better than Work Choices, but better than [former IR minister] Peter Reith's [Workplace Relations Act] legislation from 1996."
Michele O'Neil, Victorian state secretary of the Textile, Clothing and Footwear Union, told GLW that she was "extremely concerned" about the lack of unfair dismissal provisions.
"Businesses can even access an assistance sheet on how to sack workers. I'm concerned especially about the lack of rights for workers in small businesses. I'm opposed to treating workers in small businesses any different to workers in larger business: they should have the same rights", O'Neil said.
"Workers and unions should be able to bargain, and include [in their agreement] provisions they find useful, such as that jobs at a particular workplace cannot be contracted out to insure that wages and conditions are not undercut", she said.
"Pattern bargain provisions are also critical as [they] help lift wages and conditions across the industry. There should also be no limitation on industrial action."
Derrick Belan, NSW state secretary of the National Union of Workers, slammed Gillard's IR blueprint, saying it was "absolutely not" what workers had fought for.
Belan was also incensed at the continuing restrictions on union officials' right to access workplaces to talk to members and workers. "Union officials should have access to employees who wish to speak to them. We can't force people to join unions ... [but] they should have the ability to [talk] to us in paid work time."
Asked what workers needed to do to win a fair IR system, Belan was unequivocal: "We need to go back to when we got rid of Howard: that campaign has got to start again."
Brian Boyd, secretary of the Victorian Trades Hall Council, told GLW that Labor's IR laws were "Work Choices lite". "We have not yet achieved what we set out to do when we got rid of John Howard at the last federal election."
He said the YRaW campaign not only needs to continue, it must be expanded. And, "If we don't get what we want, we have to mobilise, hold rallies and not give up on taking industrial action".
Gooden agreed on the need to step up the campaign for workplace justice. "Workers expected that certain principles, like unfettered enterprise bargaining, were won though the anti-Work Choices campaign", he said. "But they're discovering that this is not the case.
"The union movement urgently needs to re-launch the campaign for our rights at work — this time against Labor's Work Choices lite. But we also have to tackle the root of the problem — the bosses' demands for these laws", Gooden added.
"This means we will have to be prepared to take industrial action against bosses, or the pressure on government to implement the same anti-worker laws will remain."