Advance Australia Fair - Building Sustainability, Justice and Peace
Workshop - Going it alone: Howard's 21st Century Australian workplace
Saturday 30th July 2005

Back to workshop program

Mordy Bromberg

Labour Barrister

What I want to do is briefly outline what we had, what we are about to lose and talk about some of the things that might be done to address the current difficulties. What we are facing is an individual rights based attack. The catch-call of individual rights seems to be at the heart of the Coalitions attack, and I’ll address that, but at the end of what I want to say is that this individual rights based attack can be effectively met by a rights based response. The catch-cry for the Howard agenda of industrial reforms is choice, flexibility, simplicity, individuals’ right to bargain and freedom of contract. It’s the power of one, the power of the individual negotiating with his or her employer that is the fundamental ideology, the theory that is being peddled.

And recently I was asked to respond to an article written by one Des Moore of the Institute of Public Affairs. I refused because having read it I decided that any publisher who published this rubbish didn’t deserve a response from me. But I was interested to read the article and I think I learnt something about what is at the heart of these reforms. Des Moore says this: “employees in modern societies are no longer required to be protected against employers be socially based determinations and interventions.” I looked hard through this paper to see the statistics, the studies or research that gave some foundation for comments that seemed rather surprising for me. I’ve been an industrial relations lawyer for nearly 20 years. It wasn’t my experience and I don’t think its been the experience of anyone that’s represented employees, that employees in the modern day have bargaining power equivalent to their employer. But that is what is at the heart of the ideology we are now facing. Not only are they prepared to write academic pieces in support of that precept, I actually think they believe it. It’s that sort of ideology that the union movement faces and it’s that sort of ideologue that the union movement is currently being challenged by. I don’t think that Des Moore had the benefit of Pope Leo the 13th. He certainly didn’t refer to it in his research.

So what’s proposed is that the individual should reign and that the individual should reign through a very powerful weapon. The individual contract. The Howard Government recognises that however, despite the power of the individual, there might need to be some underpinning of the individual’s bargaining position and they put up essentially four things: a minimum wage setting, they won’t call it a ‘tribunal’, I think they’ll call it a ‘Fair Pay Commission’. As I understand it, it’s a group of economists who are going to look at the economy. Probably the last thing that they’ll look at are the needs of the individual worker. But in any event the individual’s going to be protected by a minimum wage. There are only two or three other protections and these will be legislated. These will be sick leave, annual leave and parental leave and hours of work. Everything else is up for negotiation. Everything else is on the table to be negotiated with worker and employer sitting across the table thrashing out which condition should be in which should be out, what’s appropriate and what isn’t appropriate. Of course it doesn’t actually work that way at all. The way it works is that the individual wanting the job comes along to the interview. If the individual is successful enough to get the job they’re handed a piece of paper with the contract already on it. It’s not negotiable. You want the job or you don’t want the job. In fact, the Government is so keen on individual bargaining that it’s helping employers prepare standard form individual contracts. Their commitment to flexibility in individual contracting is undermined by the fact that they see standardisation as something that ought to be promoted.

The neo-liberal agenda has been a fragmentation agenda and it’s been around for some time. It’s been about the fragmentation of the collective. Des Moore and others have been singing that ideology for a long, long time and been effective at it. It began with the fragmentation of the industrial collective and its moved now to the fragmentation of the enterprise collective and I’ll come to that.

But before we go there, let’s talk about what we had in terms of Australia’s industrial relations history. With the great strikes of the 1890s came the recognition that unions and their membership were here to stay and with the formation of the Commonwealth a preparedness to bring unions into the house and give them a seat at the table. Australia and New Zealand were the only countries that ever had a conciliation and arbitration system of some significance. Our system was based on the notion that if individuals were able to be represented through a union and the union was recognised and encouraged to resolve disputation there would be industrial peace. If resolution wasn’t able to be effected by employers and unions negotiating then an arbitration commission was available, an independent tribunal was available to determine what was fair, who was right, who was wrong what ought to represent the industrial regulations for that particular industry or that particular workplace. That gave collectivism a seat at the table for many years. Until the early 1980s it allowed unions to make an effective contribution to the setting of rates and conditions. It allowed principles of industrial fairness to be established. It allowed a whole lot of fundamental rights to be enshrined in an institution which supported them, largely supported those rights on the basis that a fair outcome was the right outcome.

I’m not suggesting that this was a workers’ paradise, because it wasn’t, but some of us when we look back at it now, might think it was rather better than we thought at the time. What happened in the early 1980s, the notion of there being industry-wide regulations came under attack because the problems with it from a neo-liberal point of view was that employers didn’t compete with each other on the wages they paid to their employees. If you had an industry-based award the same rate would be paid to the employees doing the same sort of work, across that industry. Employers could compete with each other, whether they were making shoes, or whatever they were doing, they could compete with each other on all manner of things but not on the back of their employees wages. Now the neo-liberal agenda didn’t think that was right and began what I call the fragmentation of collectivisation. It began with the move to enterprise bargaining as opposed to industry wide award based regulation of conditions.

Through the 1980s the notion that regulating conditions by enterprise gained currency. With enterprise bargaining came a change to our system. It came in the form of collective bargaining being given greater significance than before. Australia, as I said, was one of the few systems in the world that had conciliation and arbitration tribunals to deal with industrial disputes. Most of the world worked on the basis that the imbalance of power between employer and employee could be dealt with through collective bargaining. That is the capacity of employees to collectivise together and exert pressure including by taking strike action against their employer in order to reach collective agreements. With enterprise bargaining we saw for the first time in Australia, in about 1983, the introduction of the right to strike. Until that time, although strikes had occurred and mainly occurred without employers taking legal action, there was no right to strike. Every strike was a breach of the common law and those involved were liable to damages. With the changes made by the Labor Government in 1983, with the move to enterprise bargaining came collective bargaining, a protection on terms of the right to strike. Unions and their members were thereafter allowed to strike in furtherance of a collective bargain. Once the agreement was made there was a prohibition on taking any further action for the life of that agreement. And that regime applies throughout the developed world and it’s based on a number of ILO conventions which support the right to collectively bargain, the right to strike and the right to organise.

What we are seeing at the moment is the next level of fragmentation of the collective and that is reforms designed to fragment the enterprise, down to the individual sitting at the table with their employer, supposedly bargaining. We’ve seen some of it over the last 7 or 8 years with the Senate being a bulwark against some of the changes the Howard government has been wanting to bring in for a long time. What’s wrong with individual contracts? Why can’t individuals choose to take collective action? What is it about individual contracting that undermines the collective? These are the sort of questions that need to be clarified. Why isn’t it the case that with the introduction of individual contracts the employees do have a choice to contract individually and to contract collectively through the assistance of a union or otherwise. Individual contracts are pernicious and individual contracting is recognised as being destructive of the capacity of a collective to properly negotiate. ILO conventions are agreed to by employer representatives, government representatives and union representatives. Long standing and universally acclaimed ILO conventions recognise that the capacity of individual contacts to undermine collectivism is entirely destructive of collective bargaining.

The way it works is relatively simple and I could demonstrate it best with an example. Let’s take a collective of thirty people working together in a warehouse. An employer keen to individualise that workforce will only offer you employment on the basis of an individual contract. In terms of choice the new employee has none. As new employees come into the workplace, the number of those on individual agreements increases and those on a collective agreement diminish. Those on the Australian Workplace Agreements are prohibited from being included in the action. When the union wants to collectively bargain the next agreement is faced with a dilemma that only those who have resisted the individual contact are able to join the collective, effectively bargain and take effective industrial action. They can’t take collective action until their agreement has run its course. Within a very short time what you have in a workplace is ten people on the collective certified agreement, the rest on AWAs. Their AWAs end at different times and they can never join together.

Although we think about collectives, and those of us who are in the union movement or support the union movement understand the importance of a collective in the fight that’s coming now, one thing that we should remember is that the rights that we support are in fact the rights of individuals. Freedom of association is the right of an individual to collectivise. Union rights are in essence the rights of members to do things. Unions don’t have rights as such. Their members have rights. The right to strike is an individual right, a human right and has been recognised as such through a range of international institutions, the DHR and other international conventions. We haven’t in Australia had to pay much attention to those rights because for most of our history those rights have been embedded in institutions like the IR Commission. Those rights have been embedded in legislation like the Industrial Relations Act. Unfortunately because many of these rights have been corporatised into the institutions that we supported, with the removal of these institutions, the breaking down of the Industrial Relations Commission, we’re going to lose a lot of these rights. Many of us, the people who will suffer, haven’t had the sort of link and understanding of these rights as you would find in many other places including Europe. Europeans tend to know more about the right to collective action, the right to collectivise, the right to freely associate, than a lot of people in Australia.

What we need to do as part of the fight, and perhaps more a long term rather than a short term approach, is make Australia understand at the base of unionism are a number of very fundamental individual human rights that need to be recognised, supported and treated like the right to live free of discrimination, and with equal opportunity. Some of these basic rights Australians now understand, treasure those values and will fight for. There are other rights, the right to strike, collectivise, to join together with other workers in order to address the imbalance between the bargaining power of the employer and the worker. All those rights in my view need to be enshrined in law eventually, at least enshrined in our consciousness as rights which must be fought for.

--------------------------------------------------------------------------------------------------------------------------------------------

Back to workshop program