Labor’s proposal for multi-employer bargaining has the bosses worried. Tania Constable, head of the Minerals Council of Australia, said it would “unleash industrial chaos” on the mining industry.
Master Builders Association chief executive Denita Wawn said Labor’s legislation “will force workplaces to cop deals they don’t want and subject workers and business to industry-wide industrial action they don’t support.”
Union leaders, on the other hand, are greeting Labor’s amendment to the Fair Work Act (the Secure Jobs, Better Pay bill) as a big step towards easing the cost-of-living crisis by letting workers bargain for decent wage increases.
ACTU secretary Sally McManus wrote that the bill “will ensure bargaining is simple, accessible, and fair for all Australian workers. It will also provide real rights to improve the lives of working women, like equal pay in women-dominated industries”.
The reality, however, is much more complex.
Multi-employer bargaining is already in the Fair Work Act but no such agreement has been made since 2009. Labor is making it easier—but only for certain sectors of workers.
The new “supported bargaining” system is aimed at low-paid and feminised industries such as aged care, disability care and early childhood education and care.
There is no return to industry-wide agreements and strikes that used to be the case for workers in sectors such as manufacturing, universities or the public service before the introduction of enterprise bargaining by Labor in 1993.
In introducing the bill, Tony Burke, Minister for Employment, made it clear that even coordinated action across such sectors was ruled out. “The prohibition already in the act on pattern bargaining will remain.”
Workers in supported bargaining will have the right to take protected industrial action but only by giving five days’ notice (for enterprise agreements the requirement is three days).
The notes accompanying the bill make it clear that the notice period “is to provide employers adequate time to respond and put in place contingencies ahead of the planned industrial action”.
And if talks break down the bill allows for the Fair Work Commission (FWC) to rule a dispute “intractable” and to impose an agreement.
While McManus is emailing union members saying that the bill is a great step forward, she told the Financial Review: “The bill does not simplify or remove the red tape that makes the process of obtaining protected industrial action for workers unnecessarily long and difficult, in fact it adds more red tape.”
Currently workers have to ballot to take protected industrial action. The bill states that ballot results will now be valid for just three months. If an employer drags out a dispute, workers may be forced to vote again, wasting time and resources.
Far from supporting low-paid workers, the bill waters down the better off overall test or BOOT that ensures that a deal cannot be worse than the underlying award that applies to each industry.
The notes state: “The bill will restore the original intent of the test as a global, rather than line-by-line, comparison against the modern award.”
That means that the FWC will accept cuts to conditions in one section of an agreement on the notional basis that they are balanced out by gains in other clauses.
In addition, the BOOT will apply only to current workers. The notes state: “For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.”
As the Retail and Fast Food Workers Union warns, this could lead to employers striking deals and then introducing worse terms for workers employed later on.
The bill includes measures that workers will welcome, including making gender equity an aim of the legislation, creating enforceable rights to flexible work, limiting fixed-term contracts, banning pay secrecy and abolishing the anti-union Australian Building and Construction Commission (ABCC).
But even these clauses are riddled with exemptions designed to pacify employers.
There are no fewer than nine reasons why the new limits on fixed-term contracts need not apply.
And while the ABCC will go, any evidence it collects to use against construction workers or their unions can still be used by the FWC.
The bill’s title is a fraud. It is unlikely to create secure jobs or better pay for most workers. Any gains will be slow, limited and confined to specific industries.
If we want pay rises that at least match rampant inflation, it will take strike action to win them. And effective strike action involves breaking the industrial relations laws, not begging for their reform.
By David Glanz