Graham Matthews
Under regulations that will give effect to the Work Choices legislation, employers will be able to pay wages below the minimum wage, so long as the workers' average wage over the year reaches the minimum. This provision, along with a similar proviso allowing employers to average normal working hours over the year, are just two of the nasties that the federal government snuck into the regulations in the week before Work Choices came into effect.
The Workplace Relations Regulations 2006 are required to implement the Workplace Relations Amendment (Work Choices) Act 2005. The regulations were posted onto a federal government website on March 17, and workplace relations minister Kevin Andrews launched the regulations at a media conference on March 19, in the midst of Commonwealth Games hysteria.
The promulgation of the regulations is the last step needed to make the Work Choices legislation, hurriedly passed by the Senate in December, become law. The legislation will come into effect on March 27.
Prohibited content
The regulations provide the detail of how the government wants to tighten the screws on unions and attack workplace rights. They massively expand the powers of the workplace relations minister, and precisely regulate what unions may (legally) do and how they are to do it. The regulations have been universally condemned by the labour movement as further evidence of the government's attempt to outlaw union activity and erase long-held rights at work.
The Howard government prides itself on deregulation, yet the Work Choices legislation and regulations introduce strict procedures that must be followed before unions can legally fight for their members' interests. The government is aiming to have unions so tied up in legal red tape that they become ineffective defenders of workers' rights. No such restrictions are placed on employers' ability to intimidate, sack or lock out their employees.
The regulations spell out the details of "prohibited content" — items that cannot be included in certified enterprise agreements, regardless of whether bosses and unions agree to their inclusion. Simply asking for the inclusion of provisions such as payroll deduction of union dues, trade union training leave or protection against unfair dismissals subjects individual workers to a $6000 fine and unions to a $33,000 fine.
Also prohibited are: any provisions that allow for the renegotiation of an enterprise agreement during its lifetime; any restrictions on bosses' freedom to offer individual contracts (Australian Workplace Agreements) to any employees at any time; and bans on the use of labour-hire or contract workers.
Certified agreements will also be prohibited from enshrining union officials' right of entry to workplaces. They may not contain any provision that does not relate directly to the employer/employee relationship, or that does not apply to all workers covered by the agreement.
It will also be illegal to incorporate in a certified agreement any restrictions on the "cashing-out" of up to two weeks' annual leave a year, making a mockery of the government's claim that it has "protected" leave provisions.
'Big Brother' minister
The regulations also give new powers to the workplace relations minister.
The Australian Industrial Relations Commission (AIRC) must inform the minister of the details of industrial disputes within a week of the lodging of applications for protected industrial action. The minister must be informed of applications for secret ballots (necessary before taking legal strike action), when applications are received for the commencement or termination of a bargaining period and applications for right of entry. The Office of the Employment Advocate must send the minister every workplace agreement lodged with it within three weeks of its registration.
In a blatant attack on democratic rights, the Work Choices legislation and regulations together give the minister virtually unlimited power to interfere in industrial disputes and agreement negotiations. Without recourse to parliament, the minister may change the regulations at any time and make other items "prohibited content" retrospectively. The minister may also declare any industry an essential service at any time, to prevent protected industrial action from occurring.
Under the amended Workplace Relations Act, the minister has the power to intervene in the establishment of any award or certified agreement if she or he believes it is not in the public interest. or if she or he feels that the agreement may seriously harm the economy or part of it. The minister may order a full review of any decision of the AIRC.
The regulations also specify, in minute detail, the procedures that unions must follow to hold a secret ballot — required for the authorisation of protected industrial action. A union's failure to adhere to each and every requirement will make the process void and render the resulting industrial action illegal.
Under the regulations, workers paid $95,000 or more a year will be barred from accessing unfair dismissals provisions, an exclusion that the Australian Workers Union Queensland secretary told the Courier Mail was aimed at thousands of high-earning workers in mines and on construction sites.
Speaking to the March 21 Sydney Morning Herald, John Buchanan, deputy director of Sydney University's Industrial Relations Research Centre, said: "If the unions play by the new rules, every single thing they try to do will be on the minister's desk within 24 hours on some issues and one week for the others ... The new role of the [IR] Commission and the Employer Advocate is essentially to be the eyes and ears of the [federal government]."
Dean Mighell, Victorian Electrical Trades Union secretary, told Green Left Weekly, "I think that you cannot observe these laws and operate as a union that protects your members. They're designed so that you can't do it."
The fear and loathing that working people have for the new workplace legislation was evident in the results of the Tasmanian and South Australian state elections on March 18, both of which returned Labor majorities.
Despite this, the Howard government's determination to eliminate the role of unions, abolish awards and the AIRC, and force workers onto individual contracts means that it will press ahead. The only thing that can stop — and reverse — these attacks is a concerted, nationwide industrial and political campaign.
From Green Left Weekly, March 29, 2006.
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