Labor's new Fair Work Act is a hybrid of some traditional Australian IR concepts (the Commission and Awards), some elements adopted from overseas (good faith bargaining) and some elements that remain from WorkChoices (restrictions on bargaining and restrictions on unions).
WorkChoices were the most radical IR laws ever seen in Australia's history with the dreaded AWA individual contracts at its centre. These were used on low paid workers to strip key condition such as penalty rates and overtime. At the other end of the spectrum mining companies used high wage AWAs to deunionise their workforces in metalliferous mines.
Even though collective union agreements in the coal industry for instance comprehensively out performed these sectors (metalliferous) in terms of productivity gains - AWAs failed in their stated aim of boosting productivity but succeeded in their real purpose of breaking down collective industrial relations.
The union movement responded with the Your Rights At Work (YRAW) campaign mobilising 200,000 supporters who helped ensure that for the first time in an Australian general election the issue of industrial relations was the dominant political issue in the minds of voters. The Liberals chose to sink or swim on their commitment to WorkChoices and were comprehensively defeated with Howard losing his seat.
Labor's response to the YRAW campaign promised the Fair Work Act and now just over three years since the start of WorkChoices nightmare, Labor's new laws are in place. Clearly there are some good aspects to it, such as;
• no more AWAs,
• the restoration of industry awards,
• good faith bargaining,
• unfair dismissal rights for all,
• a strong independent umpire.
However the Fair Work Act retains some of the negative elements of WorkChoices, such as;
• restrictions on bargaining form and content,
• onerous penalties and sanctions on industrial action,
• restrictions on union right of entry,
• the retention of old AWAS,
• loss of award rights for those on over $100,000.
Another legacy of the Howard era, the Australian Building and Construction Commission (ABCC) is still with us. Its coercive powers continue to strip construction workers of their right to silence and to choose their legal representative. These unjustified discriminatory powers will be transferred to Fair Work Australia, the body that will administer the Fair Work Act.
The Fair Work Act also like WorkChoices rejects the use of the Constitution's conciliation and arbitration power that underpinned our IR laws for a century. Labor's acceptance of WorkChoice's constitutional underpinning (i.e. the corporation's power) means our parliament is unduly restricting the scope of industrial law. The long term effect of this is unknown and has passed largely unnoticed.
What we do know is that workers can be confident that their union now has the power to properly represent them in negotiating their wages and conditions in most situations. Employers cannot just walk away and refuse to bargain. Telstra's return to the bargaining table with their unions is a good early sign here.
As it always has, the CFMEU will use all available opportunities to advance our members' interests and will keep fighting to improve the legal framework in which we operate.
The difference is some of the lead the Liberals put in our saddlebags has been taken out.
John Sutton
3 July 2009
