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Some thoughts on “the right to strike” and the Change the Rules Campaign – Part 2

The “right to strike” versus employer opposition and Laborist naivete

The “right to strike” is one of two (see below) demands that would change the “balance of power” towards working people in a “fair dinkum” way.

The FWA09 restricts workers’ right to strike so severely it is almost meaningless against an array of powers provided to employers to control grievances, disputes of all kinds, industrial award changes, and enterprise bargaining. In effect, the FWA09 denies the “right to strike”.

The right to strike is the countervailing power to the employers’ unrestricted right to withdraw their capital or to transform its use from productive activity to non-productive forms of profiteering, or to re-locate it in another country.

In struggling for a genuine “right to strike” the labour movement is seeking to change a law that a Labor government established in 2009, and that its union leaders consented to. At that time, most activists in that great struggle went to sleep, believing that what Labor was delivering was adequate. Those who did try to explain the serious shortfalls of FWA09 were criticised (not “team players”) and marginalized. That minority have now been proven to be correct.

There is a lot of other detail, also quite important, that will be contested terrain in the months ahead but also perhaps more amenable to agreement. For example, in enterprise bargaining FWA09 empowers employers to use just a few workers (who may not even work under the proposed agreement) to create an enterprise agreement that will cover many other workers who do work under the Agreement. Such enterprise agreements reduce wages, conditions and rights against previously established standards. Also, agreement might be reached to restrict or prevent employers from taking on workers as “self-employed”, individualized workers to drive down wages and conditions.

Laborist discomfort with the “right to strike”: tensions to emerge

Again today, not everyone is comfortable about changing the rules to enable an unrestricted “right to strike”. Some, especially in the parliamentary wing of the ALP  will argue that this change will harm the ALP’s election prospects. They also have some supporters in the leadership of the union movement, at both peak and mid-levels.

Generally speaking, they are comfortable with a minimalist programme of change to the FWA09, one that does not upset the employers or the voting public too much. They believe that the antagonisms between workers and their unions on the one hand, and employers on the other, are not fundamental or severe and can be managed with minimal conflict.

Instead, the minimalists prioritize more power to the Fair Work Commission (FWC) to arbitrate disputes, some modest rights for unions to access workplaces and create disputes for arbitration, and tougher limits on employers using their “lock out” and “termination of agreement” powers in enterprise bargaining.

It should be noted and discussed that the recent and important ACTU pamphlet, “The system is broken- Big Business has too much power”, does not mention the “right to strike” issue in “changing the rules”.[1] Restoring stronger arbitration power to the Fair Work Commission does not give more power to workers.

Usually, the advocates of minimalist and technocratic change, will invoke “pragmatism” as the logic for this approach.

But really, their “pragmatism” is the height of “naïve idealism” because it leaves fundamental employer power intact and assumes that employers will not take advantage of that, and that workers’ power is not necessary for the FWC to treat workers fairly. The minimalist approach assumes that workers themselves cannot exercise their power democratically and effectively, and therefore cannot give their unions more power.

In the real world, a more fundamental reform programme is necessary. Fundamental reform enables a more decisive shift in the balance of power towards workers and their unions at both workplace and industry levels.

The unfettered right to strike is the most important element of reform, including in Award based bargaining (see below).

Direct strike power to workers enables workers, including through their unions, to do what unions were originally formed to do: limit and prevent the employers’ use of the competition threat to freeze and drive down wages, conditions and rights. It gives effect to the democratic idea that workers themselves, in their unions or in other types of combination, should be enabled to exercise their potential power against the powers of the employers. Thus, workers themselves are more in charge of their present and future.

Also, it brings Australia into real alignment with agreed ILO minimum standards on workers’ rights to organise and bargaining collectively.[2]

Bargaining rights: enterprise bargaining, “supply chain bargaining” and Award bargaining

In some union discussions “supply chain bargaining” appears to be the multi -employer bargaining that is quite popular. As one form of “multi-employer” bargaining it is not objectionable, provided its serious limits are not ignored or glossed over.

In a “supply chain” the focus is on a group of employers who are in “cooperation” with each other to deliver a product or a service to its ultimate customer. However, first there is usually one employer who is the main controller of everything else in the chain. Also, each employer link in the chain is likely to be in competition with an employer who is not in the chain. The competitor not in the supply chain might like to be and can offer lower wage costs as the competitive edge to get into it.  Or, the competitor might be in a competitive supply chain able to deliver the same or a similar product to a similar or the same type of customer at a lower wages standard.

Therefore, there are real limits on how “supply chain bargaining” deals with the problem of the downward pressure on wages etc that is created by uncontrolled competition between employers in the same industry or type of business, nor how it deals with the 21st century reality of global supply chains.

On the other hand, the enabling of a new form of Award based bargaining (that includes a “right to strike”) is a big step toward limiting, maybe preventing in some circumstances, the employers’ competition power.  How changes to Awards are processed these days is a big part of the broken rules of the FWA09.

Every effort should be made to bring together experienced and new worker activists to discuss how to advance the fundamental and comprehensive approach. Those in the parliamentary Labor Party and unions who seek, as they have before, to dilute proposals to establish a legal “right to strike”, can be challenged and pushed back.

Other significant factors that shape this struggle for genuine and fundamental strengthening of workers’ powers

There are other factors that do influence how this struggle might evolve in the months and years ahead. One of them is the rapid change in the composition of the workforce. There is also union density currently running at about 12-14% overall. This has to be taken into account in developing programme, priorities, strategy and tactics, and shape how the “the right to strike” can be achieved. Just calling for the “right to strike” in the most militant manner possible will simply not be adequate for the situation we face. And, there is the timing of the national election.

Sally McManus (ACTU Secretary), and other union leaders who have stressed the continuation of the campaign after the next election, are correct to do so. If the Labor Party wins, including with Greens support, a continued campaign will require a clear and determined strategy very different to the collapse of the Your Rights at Work campaign over 2007-9. It will not be adequate to declare, as in 2009, that there is “unfinished business” and then do nothing about it.

The labour movement’s strategy must aim to bring 21st century workers into the experience of struggle, with a new foundation in which they discover directly in their own workplaces and across their industries and regions, the great untapped and democratic potential of their power in combination. The workers themselves, including through their union membership, reveal the power of any appeal to “join their union”.

[1] The “right to strike” issue is put forward in the more comprehensive ACTU Campaign Kit at pp 34-35: here: https://d3n8a8pro7vhmx.cloudfront.net/actuonline/pages/814/attachments/original/1521588484/ctr_campaignkit2018_digital.pdf?1521588484

[2] Andrew Stewart provides a summary of the issues at stake re the ILO standards here: http://communitywebs.org/labourhistory/wp-content/uploads/2016/05/Right-to-strike.pdf

Some thoughts on “the right to strike” and the Change the Rules Campaign – Part 1

What is real power for workers? It’s time for a sharper focus on ”the right to strike”

The Australian union movement’s Change the Rules Campaign (CtR) aims to reform the Fair Work Act 09 (FWA09) in favour of workers and their unions. Launched just one year ago, CtR jumped to a new level over several recent May Days with public actions in cities and towns all over Australia. For me, 2 great highlights were the magnificent and inspiring march and rally in Melbourne on May 9th, and the action taken on May 1st itself by the ACT Trades and Labour Council. The ACT Unions were the only Australian labour council to take action on May 1st itself.

The campaign is growing. It features mainstream media publicity, workplace and local community organization, similar to the Rights at Work campaign that started in 2005, and the discussions at the Change the Rules Activists and other Facebook pages, as it moves to a new stage.

This new stage also moves towards the national election. In that context, the ALP, the Greens and, of course, the union movement itself will intensify the discussion about how the campaign can help defeat the Liberal-National Party government. And, the employer organizations, specific powerful employers in their own right, the mainstream media, and the Liberal-National Party (LNP) government will sharpen and escalate their opposition to new rights for workers and their unions. They believe that a popular majority can be frightened into rejecting a genuine shift in power based on a “right to strike”.

The “right to strike” and multi-employer bargaining, including Award based bargaining rights, will be 2 important indicators of tensions within the labour movement. Such tensions are inevitable, normal and healthy, and have a long history.

The forthcoming ACTU Congress and ALP Federal Conference in Adelaide a couple of weeks later will probably show more of how this tension unfolds.

How the newly emerging activists and leaders at the mid-level of the union movement will handle the issues at stake is unknown. But how they do handle the situation will shape the campaign and the years ahead. Many emerging activist leaders at the middle level will enter this struggle with no personal experience of being in a strike.

The Meaning and Impact of the Right to Strike on union repression and Union Growth

The FWA09 restricts workers’ right to strike so severely it is almost meaningless against an array of powers provided to employers to control grievances, disputes of all kinds, industrial award changes, and enterprise bargaining. In effect, the FWA09 denies the “right to strike”.

Therefore, against this, all Workers must have the right and capacity to strike  they are members of unions, or not.

The right and capacity to strike is the countervailing power of workers to the employers’ unrestricted right to withdraw their capital, or to move it from productive activity to non-productive forms of profiteering, or to re-locate it in another country.

A new government must repeal the extra laws that have been imposed to repress, penalize and restrict the democratic rights of construction and allied workers, including shutting down the Building and Construction Industry Commission.

The ideas that follow assume that Australia’s legal system continues under the Corporations power of the Constitution and not the Conciliation and Arbitration power. [1]

The “right to strike” for workers and their unions should apply to a range of real situations, like as follows:

  1. Their boss underpays them or breaches an award, statute, or enterprise agreement, or imposes redundancies, or assaults their dignity by bullying, harassing, and forcing unsafe work practices. This is the most important application of the “right to strike” for union re-growth. In such disputes, when workers have a strike power, workers themselves re-discover the logic of “being union” and re-growing union membership. The parties to a dispute can determine whether the dispute goes to the FWC in the given circumstances.
  2. Negotiating an agreement / enterprise agreement, including multi-employer agreements (e.g. in a supply chain), or a dispute that is active across a group of employers.
  3. Negotiating an award improvement or with a group of employers;
  4. Giving solidarity support to other workers; current penal powers – fines, common law damages, the threat of jail, and so on must be withdrawn, especially the “secondary boycott” prohibition (so-called, actually a solidarity action):
  5. Governments do something that damages workers’ job security or standard of living or democratic participation in the society
  6. In all contexts workers must have the right to strike for demands and negotiations that enable them more effective say in the role and purpose of their work. This extends democracy into the workplace, against dictatorial corporate / executive and Board of Directors control.

[1] The Howard government’s changes in 2005 shifted the head of power to the Corporations Power (S. 51.xx) in the Constitution instead of the Conciliation and Arbitration Power (s.51.xxxv). Under the latter, although there was no legal right to strike through most of the 20th century, there was a sort of “right” to create a dispute (available to workers and bosses) that was either real (ie industrial action or the threat of it) or “paper”. This “right” activated a mindset among workers about being able to use industrial action to get the dispute to the Commission for conciliation and  or arbitration, and thus put pressure on both the employer(s) and the Commission for a positive resolution. What does this mean for Change the Rules demands?  There has been zero talk about switching the law back to the s.51.xxxv underpinning. In other words, Howard’s law – ie Corporations Power – is left unchallenged, just as J Gillard manoeuvred for and achieved in 2007-9. The bosses love that.

Part 2 to follow

Happy Birthday 200th Birthday, Karl Marx!

Karl Marx, Helen Razer and May Day 2018: Marx’ 200th birthday Anniversary – May 5th

In Australia, in the middle of our month of actions to build the Change the Rules Campaign, we should pause for a while to celebrate the 200th anniversary of the birth of Karl Marx, May 5th.

That might be a big ask for many Australian labour movement activists. And probably also for those of you in the First Nations liberation, environment movements, feminist activity, anti-racism, refugee solidarity, and so on.

Therefore, “Why pay attention to Marx?” 

Back in the nineteenth century Marx gave our forebears – the workers of the world – the first coherent and worker oriented explanation of how capitalism worked in his day, and some basic principles for a true alternative, a true socialism.

21st century capitalist society is quite different from way back then, but in its essences it is so much the same. There is a connection between the way in which 21st century capitalism is different and the way it is the same. We are still living in a world of exploitation, with various levels of hyper exploitation, of both the majority of humans and of most of nature as we know it. The exploitation is driven by the dynamic of the system.

Karl and Fred, with Jenny and some others lending a helpful hand in many ways (see the recent bio, “Love and Capital”), explained that dynamic thoroughly. Even right wing commentators in the financial media can’t help but recognise it, especially to understand the 2007-9 financial crisis and why it is taking so long for a recovery to happen, and that so far there is no recovery for the lives of billions of humanity.

It’s worth paying attention to Karl for lots of reasons, including a sparkling and at times bawdy wit, and his contribution as a refugee solidarity activist with the rest of his immediate family (again, take a look at “Love and Capital”).

Earlier this week we in Australia were reminded in several ways why millennial workers, and others like me (post ww 2 generation), might find using a marxist approach to understand wtf is going on worth the effort.

They included the media coverage reports of

– what the Australian government is going to do to continue the failure of successive governments to tackle and reverse climate change at the rate that is desperately needed;

– and, the housing crisis: there was this summary of a new report from Anglicare that told us, among other horrible things, that out of 67,365 rental properties surveyed across the country, only 3 were affordable if you needed Centrelink (social security) payments;

– and this that described precarious employment plight for workers of the millennial generation … unemployment at 12.5% average, double the general average, underemployment at huge levels, the government driven destruction of vocational education and the apprenticeship system, and “wage theft”, the systemic payment of wages at less than the legal minimum rate.

Helen Razer and Marx

Helen Razer is a popular and sharpish marxist social commentator. Her most recent (2017) book is “Total Propaganda”, a plain speaking, witty and bawdy (in a way that Marx and his household would smile at) 21st century introduction to Marx and Marxism for workers of the millennial generation. I recommend it as a good (with a couple of weakness though) 21st century introduction from an Australian starting point.

Her Introduction includes this:

“You guys have it bad … There is nothing character building about not being able to afford a permanent place to live. There is nothing fun about a shrinking job market. Stagnant wages are not exhilarating.”

And this:

“You are not a pussy for feeling that the world has failed you. The world has failed you, and it’s hardly your fault that its systems have begun to break down. You guys are not choosing to flit from job to job. You are not choosing to hurt those Chinese and Congolese workers who made that iPhone with their blood. You did not throw your chance at a home after a gourmet sandwich.” (You can read the next bit yourself “Oh Millennial Sandwich Eater.”)

At the end there is a chapter about what to do about it and also a pretty good suggested reading list.  (It leaves out a couple that I would recommend. For example I would include Terry Eagleton’s equally entertaining “Why Marx Was Right”, and Malcolm Robert’s blog posts that offer good plain language explanations of how the economy we live in right now is working / not working, based on key marxian ideas, see below.)

In between there is a sparkling overview of how Marx was motivated by his passion for freedom for all people by analysing how freedom worked (works) in a capitalist system, including its cultural and political dimensions, not just its economic. She points also to what she sees as weaknesses in Marx’ thinking.

She gets into 2 key “economic” concepts essential to understanding things like exploitation and recurring and irresolvable crises. They are the labour theory of value and the tendency for profitability to fall. She doesn’t quite nail these, nor the value of dialectical thinking (eg capitalism changes by staying the same, but retains its impulse into crisis and inability to fully recover from it.)

She does nail pretty well Marx on alienation and the fundamental reality that our material existence is the foundation for all else. Its also funny and entertaining, using the “problem” of masturbation as the starting point.)

She also grabs hold of another core Marxian idea and shakes our brains with it: “The free development of each is the condition for the free development of all”.

This is a good entry point to understand the essential difference between individualism, as lauded by the employers and their Liberal Party, and individuality. The promotion of individualism – rooted in selfishness, greed, self-centredness – is a central idea of 21st century capitalism, just as it was in Marx’ 19th century. The material economics of individualism – capitalism – kills individuality. Individuality – the precious unique potential of each human being – nourishes and amplifies the possibilities for each one of us and, in itself, is dependent on the power of workers uniting across the boundaries varies of gender and race.

Her “what is to be done” chapter is simple and powerful: get engaged including through study and thinking. Act. Bring identity politics into the common struggle against exploitation and hyper exploitation. Study exploitation using Marx because his legacy provides the best perspective for doing that. It’s time for that now and over these next few years. No more whinging.

The place for millennial workers is in the struggle to Change the Rules, in the workplace. Its rescuing our environment. Its standing in solidarity with our First Nations peoples. And so on. It’s on the streets for May Day. It’s in the public meetings, the rallies, the demonstrations and the meetings that plan them. It’s in the development and driving of strategy, from below and the mid-levels of our movement, not just leaving it to “heroic” leaders, elected or otherwise. Its breaking out of the boring cycle of rapacious LNP governments followed by marginally better (oh we should be so grateful) Labor governments, followed by … more getting nowhere at all.

Everyone has the potential for it. Find a way.

What does it mean when you are, or you become a union member?

By Don Sutherland, 23rd March 2018

How does a non-member join their union?

One convenient way to do it is to use the ACTU’s on line joining up tool: https://www.australianunions.org.au/join .

Why are these questions relevant right now? (If not directly for you but certainly for people you know.)

There are several reasons.

In no particular order of significance they include: every Australian worker is exploited during their hours at work and they experience that as low or downward pressure on their pay, and pressure to work harder, to do more in less time; the progress of the case for an annual wage increase for at least 2.3 million workers on low wage rates; the overlapping ACTU (Australian Council of Trade Unions) publicity campaign against the broken rules of the unFair Work Act 2009 (FWA09); the revelation of dodgy and very low pay rates for Uber drivers and others in “gig jobs”, and the collapse of enterprise bargaining as a vehicle for solid wage increases (See below for a little bit more on each of these reasons.)

In a broader sense bigger and more member-driven unions will make a difference in the campaign to reverse rising inequality and poverty by winning better pay increases and establishing new rights.

So, what might your (new) union membership mean?

Well, it might mean nothing at all. You are a passive member who simply holds your union “ticket”, maybe with some idea that it is an insurance policy that you hope you won’t need in the future.

Two questions arise, “Should you stay a passive member?”  And, “What might be being an active member actually mean?” (Especially if your employer is hostile to union members.)

If your employer is hostile to union members (familiar to most workers) you can bring your membership to life to your own advantage without the employer knowing you are doing so.

Clandestine membership is sensible, even recommended, until you and your work mates judge you have the strength in your workplace to make it unnecessary.

Being informed as the basis of being an active member

The first thing that can bring your union membership to life is to become informed, including from your own initiative.

You can pay attention to union news and read the material that is available at your union’s web site or Facebook page or is sent to you through your letter box.

You are an informed member through your own action. And your boss does not know.

Being informed: the next step

You can take “being informed” to a higher level by learning about your workplace minimum entitlements (and those of your workmates). Non-members can do this also.

The legally minimum standards on pay, conditions and rights are described in the FWA09, your relevant industrial Award, and your Enterprise Agreement (if you are covered by one). There are also minimum rights in Health and Safety and Equal Opportunity laws, but these will be discussed in a separate, future post.

As a member or non-member, you can obtain a copy of the minimum pay and conditions of employment for your job that are described in the National Employment Standards and in your relevant Award, and in your enterprise agreement if you are employed under one. All of these are public documents. (Remember your boss can provide better than the minimum “voluntarily” or through an enterprise agreement. A “voluntary” better deal can be taken away whenever your boss decides to.

You can read the National Employment Standards as defined in the FWA09 here, and you can access your relevant award here.

(If you want some help to find the Award that is relevant for you then contact your union or the ACTU, or even write to me at workersradio2017@gmail.com .)

Guess what? Being well informed about your minimum rights at work will make you feel good. Given the importance of work (even when we hate it) in our lives, the amount of time we spend trying to get there, and just being there, it’s a great feeling to become more intelligent and confident than you already are.

Becoming informed together – feeling even better

You do not have to be a trained lawyer to understand the information identified above.

For decades workers have learned how to read and understand awards and another standards a) by doing it, and then b) by doing it together. (Often without the boss knowing … at least until it was agreed that it was time to “come out”.)

Once you have informed yourself about the NES, your Award, and your Agreement (if one applies to you), you can work out who among your work mates and friends you want to share your knowledge with.

You will know who it is, but, and you already know it should be someone you trust. It might be just one other work mate, or you might be in a situation where you can start with several or even more than that.

Then, you sit down with your trusted workmate(s) and show them the document (the Award, the NES or the Agreement) and, together, look closely at the bits that are relevant to your workplace.

You make your own judgement about how strong your case might be to FIRST get more support from other workers and eventually to discuss the issues with your boss, or with a paid union organiser.

You are in command of your knowledge and your case. You can also decide whether you want advice from a paid union official.

Conflict with your employer?

This is a real issue, because conflict is embedded in the employer – worker relationship. It all depends when and how it rises to the surface. Your boss employs you and your mates because your work effort delivers the total income, and within that the profit, that he or she is in business to make. The lower the price of your labour or the harder you work the better for the profit objective.

One thing is for sure, every employer has some way of discussing with their peers, even if they are in competition with each other, what the price of your labour is, and any new ideas around to push it lower, and get away with it. So, when they learn as they do from a competitor about how they can pay lower, including below the legal minimum, or dodge a health and safety requirement, they will do so. (Honourable exceptions there might be, but’s all they are.)

If your boss disappears to the golf or bowls club once a week to catch up with other employers you know what they will be talking about, and it won’t just be the state of the greens.

Getting even more informed – feeling even better but pretty sober also

Sooner or later every boss uses the “competition threat” to push back your wages, conditions and rights.

Smart workers who want to protect and improve their wages and conditions need to know who the competitor company is for the one they are employed by. There might be several.

Once you know, the next step is to work out what the pay rates and other important standards are in the competitor(s). There are lots of ways to get this information but starting with word of mouth and private conversations is a good start. (Again, we can cover this separately.)

This is where a competent and committed paid union official can be really helpful. In fact, its one of the main reasons why paid union officials were created in the first place … to share good quality information around lots of workplaces in an industry in order to deal with the problem of the “competition threat”.

There is an important discussion point here: who is the “competition threat”? Is it the workers employed by the competitor company? Or, is it the owner of the competitive company?

Almost certainly you will “be informed:” that the workers in the competitive company are having (or already have had) the same experiences that you are going through. They might already have “insights” that will help you and, almost certainly you will have insights that help them.

By being informed you are watering the seeds of solidarity and, that is an extra good feeling.

Here is a bit more on the reasons for “getting involved”.

First, Australia’s Annual Wage Review (AWR18) run by the Fair Work Commission (FWC), is well under way. The employer organisations (for all employers) and the Australian Council of Trade Unions have lodged their submissions about what the 2018 increase should be.

At least 2.3 million workers are directly affected because they are paid at or marginally above the statutory minimum rates as defined by the FWC and by the 120 odd awards that set minimum standards including the minimum rates for a range of jobs within each industry. There are also at least hundreds of thousands paid at above the minimum, but who are not covered by enterprise agreements, who are also affected by the decision one way or another.

One behalf of workers the Australian Council of Trade Unions (ACTU) has proposed an increase of $50 per week, about 7%. (For more information click here and here.) The credible employer claims are to permit an increase of only about 1.9%.

The ACTU claim is unique because it is lodged on behalf of all workers affected, whether or not they are members of their union. It is the only claim that will seek to challenge the poverty that workers on the minimum rates are subjected to.

This claim might lead to pay increases that benefit union and non-union worker alike. Should low paid workers who are not members enjoy a “benefit” enabled by their union member work mates who are in much the same or exactly the same shoes as they are?

The second reason, is the escalation of the ACTU’s “Change the Rules Campaign” (CTR) with a 6-week advertising campaign, followed in May by days of workers’ action.  Click here for more information.

The purpose of the ACTU campaign is to “Change the Rules” in the current Fair Work Act so that there are new and more powerful laws for workers, especially so that workers have more power to improve their take home pay and establish more secure employment.

On Wednesday March 22 the ACTU National Secretary, Sally McManus, delivered an important speech to the National Press Club in Canberra that outlined the purpose, aims and focal points of the CTR campaign.

One focal point is the broken rules for the Annual Wage Review process, that right now make it very hard for workers and their unions to use effective power to support their claims.

She concluded her speech by urging workers to “Join Your Union”. It will make a big difference to the CTR if there is membership growth across the board, as is now happening in some unions.

The third reason is because of what we now know about earnings in the “new economy”, or in “gig economy jobs”.

The latest research from the Centre for the Future of Work in the Australia Institute focused on Uber Drivers and was summed as follows:

The Centre for Future Work recently simulated the net incomes received by drivers working for the Uber-X service – which has come to symbolise the gig economy.  And our findings ratify the public concern.  On average across 6 Australian capital cities, we estimated that Uber-X drivers take home less than $15 per hour after paying Uber’s various fees, taxes, and the full costs of running their vehicle.  That’s well below the statutory minimum wage ($18.29 per hour), and less than half the weighted-average full minimum (adjusted for casual loading, evening, and weekend work) that waged workers in this industry should be receiving.  Underpayment of its drivers is the crucial source of Uber’s price advantage, that in turn has been crucial to its growing market share.  The report called on Australian policy-makers to reform current laws (in particular by clarifying that the concept of “employee” should indeed apply to workers in this sort of undertaking) to ensure the Uber-X drivers – and other “gig” workers – are entitled to the same basic protections as other workers in Australia.

Overwhelmingly “gig workers” tend not to be members of unions. One of the reasons for this is that they have fallen for the nonsense that they are their own boss because they can work when they like. This leaves a simple question: “How do they negotiate for a raise if they are comfy with their status as a self-employed person and work according to an “app”?”

The final reason is that enterprise bargaining, as the mechanism that was meant to enable pay and conditions above the minimum standards, has collapsed. (Please click here.) What happens in AWR’s is now even more important for most Australian workers.

Member or not? Passive or Active?

There are other reasons why becoming an active member of your union can make you a more intelligent, confident and happy worker. We have discussed these previously, along with many others, and we will return to them in future posts.

Also, we have not yet discussed the problems that do exist in our current unions. We can come back to that. Our starting point in that discussion is: as a member you have rights that make unions more democratic than any workplace and any other social organisations.

Unions are not a spectator sport.

How to join: https://www.australianunions.org.au/join

The Annual Wage Review 2017-18: From Marriage Equality to “Economic Inequality”.

By Don Sutherland (March 16th, 2018)

The Annual Wage Review:  update

This week the Annual Wage Review (AWR18) run by the Fair Work Commission (FWC) that sets new minimum rates of pay moved to a new stage. March 13th was deadline day for submissions from “interested parties”. These include employer organizations, governments, and, for workers, the Australian Council of Trade Unions (ACTU).

And, the ACTU launched its 6 week advertising campaign to highlight general and some specific aspects of the “broken rules” of Australia’s Fair Work Act 2009 (FWA09). (Click here.)

Critically, this advertising campaign will lead into days of workers’ action being planned for May.

We also learned that the unregulated salaries of the Chief Executive Officers of Australia’s top 100 corporations pushed on average well above $5 million per year. (page 12.) These characters are not required to apply for a pay increase to the FWC.

Many of them supervise the attacks on the pay and conditions of their own workforce, using the “broken rules” of the FWA09, and their company’s strategy to pay little or no tax, using the “broken rules” of the tax system.

Between now and April 9th the parties can study the submissions of all of the other parties, and any new economic data, and by April 9 present counter submissions. (For more on the AWR process click here.)

Its all very polite and loved so much by those in “the IR club”. The process is designed to exclude the workers who are most affected by it from exerting any real influence. That is, unless they or a good part of them decide to defy the process.

The claims: what we now know

The submissions have now been posted to the FWC web page (click here) that provides the detail of the progress of the Review. There is a good summary of the main claims here. (Also, Caroline Pryor and I on “Workers Radio” . Radio Skid Row, discussed the claims today: click here.)

The ACTU claim is to lift the minimum rate of pay by $50 per week. This is a 7.2% increase for low paid workers. Make no mistake, there is no one else going in to bat for them like the Australian union movement.

This is a claim made for all workers, not just those who are union members. If you are not a member its time to join. If you know someone who is not a member its time to have a serious talk with them. You can help them join directly at this ACTU page: click here.

For the employers, arguably the most influential employer organization, the Australian Industry Group, wants a paltry $12 per week increase on the minimum rate and $14.60 for the lowest award rates. That’s a 1.8% increase, which is less a than the current inflation rate. In other words, a pay cut. No surprise there.

One of the retail employer organizations wants a zero increase. The other concedes a 1.9% increase, as does the Australian Chamber of Commerce and Industry.

The federal government and the ALP did not propose any specific increase but their proposals were quite different.

The Federal government wants the smallest possible increase and argues that really wages should only increase naturally, that is, their genuflection to the “trickle-down effect”.

The ALP, in opposition, with its nose to the federal election breeze as you would expect, endorses a decent increase but one which is “economically responsible”. If the Commission grants $15 per week as “economically responsible” would the ALP accept that? What would their members say? (The Greens and One Nation have not made submissions or proposals. They both should be challenged on that.)

The arguments against the ACTU’s claim

The union activist army must grow in number and also lift their ability to defeat the employers’ propaganda against the ACTU claim.

So far, in the public arena, these are general “arguments”, and say that the claim is 4 times the inflation rate; will destroy jobs; and harm low paid workers.

These will be sharpened and added to in the weeks ahead. Murdoch’s media will be the prime vehicle to spin them.

They will have to be addressed by the union army of activists in their day to communications with workers, including those who are not yet unionised but who can be attracted to the struggle. The ACTU Submission does deal with each of them. And there is also this: click here.

How can low paid workers win? Business as usual or a defiant mobilization? Or leave it to Bill Shorten’s ALP as a new government?

We need a new strategy based on defiance and mobilization. This cannot be a once off, one year exercise. This year’s mobilization, if there is to be one, must pave the way for 2019.

The ACTU itself says that this year’s claim is step 1 towards the creation of a “Living Wage” as the new minimum pay rate. The aim is to establish a minimum rate about 2/3 of the national minimum wage. That would mean about an $80 per week increase this year. Clearly, this year’s strategy must be run as a platform for a more determined and bigger effort next year, no matter who is in government.

From the past 20 years of experience we know that the “obedient” strategy that abides by “the broken rules” is a failure. And, the AWR process in the FWA09 is one of the most broken parts of it. (See sections 134 and 285.) On equal pay the FWC has interpreted the “broken rules” such that important direct arguments on why and how to narrow the notorious gender gap on wages are rejected. (See the ACTU Submission here.)

This strategy is built around polite and strongly researched submissions (still important), orderly advocacy, a few “real” low paid workers as supplicant witnesses (a bit like Dickens’ Oliver Twist asking for more), on line petitions, a dose of social media outrage, and sometimes small scale symbolic protests.

In effect this past strategy concedes to poverty and inequality. On its own IT DOES NOT WORK. It is for dreamers only, those who love court processes, economic “debate”, and custom and practice. Such dreamers could listen to this: “The Basic Wage Dream”.  (It’s an old song with a 21st century meaning. There is a reference to “Nugget” Coombes. He was the governor of the Reserve Bank at the time.)

We all know that enterprise bargaining is falling apart both for workers who have such Agreements and for those who don’t. It is no longer a serious strategic option for any  workers, let alone for the 21st century working class.

The sparkling leadership and campaigning savvy of ACTU Secretary, Sally McManus will not alone win this claim for low paid workers.

McManus needs a much stronger movement along with her than we are currently seeing.

The core spirit of that movement must be the “defiance” that she started talking about just on a year ago in that first memorable interview on “The 7.30 Report”. She has often emphasized it since as the union outlook that has achieved all of the great gains for workers in the past.

It’s time to shift “defiance” from a word with emotional cache to a real mobilization.

Can the Australian union activist “army” deliver real defiance that attracts the low paid and their allies and strike a hard blow against inequality?

Last year the Australian union movement played a highly visible and leading role in the successful campaign for marriage equality. We saw the vibrant energy and campaigning skills of the cohort of union organisers and active delegates and members who have become active in recent years.

It confirmed their very strong grasp of discrimination politics, the meaning and manifold impact of discrimination, and a very clear reminder that the working class includes a significant cohort of gay, lesbian and trans workers, who have vital relationships with “straight” workers as mothers, fathers, daughters, sons, friends and so on.

This campaign strengthened gay workers, educated “straight” workers, neutralized opposition to and prejudice against gay workers, and found collective public actions that all parts of the working class could connect to.

The middle level, newly emerging union leaders – officials, organizers, communications officers, job delegates, active members – showed in that fight against a particular form of discrimination what they are capable of.

Can they reproduce that real potential in a wages campaign? Can the mid level activist “army” get as outraged by the increasing rate of exploitation?

At the moment there is no real sign that they can.

As strong as this part of our movement are on “discrimination politics” they are somewhat weak on “exploitation”, and not showing any sign yet of the same levels of movement wide clarity and energy as last year’s anti discrimination campaign.

The next 6 weeks leading to May is a chance to start changing that.

Because that’s how we build the pressure from below that is needed to win a much better result in this year’s wage claim, much closer to the ACTU’s claim that has ever before been achieved. Luke Hilikari, Secretary of the Victorian Trades Hall Council, gets close to the point here.

Such a mobilization is what is needed for the millions of workers who are dependent on the AWR for their wage increase. These include those who are paid at the minimum rate, those who are underpaid by employers who thieve their wages from them (a business model in 21st century Australian capitalism) and those who are paid a little bit (bit not too much) above the minimum rate, but not enterprise agreement rates that tend to be much higher.

If you wish to use your own initiative to learn more about the formal process, and also see the submissions as they are posted, you can start here: https://www.fwc.gov.au/awards-agreements/minimum-wages-conditions/annual-wage-reviews/annual-wage-review-2017-18 .

“Solidarity Forever”: Robots, Workers, and Profitability

Don Sutherland (March 2018)

Everyone I know with any form in the Australian union movement loves the song “Solidarity Forever”. The song includes these 2 lines:

They have taken untold millions that they never toiled to earn 

But without our brain and muscle not a single wheel can turn

What do these words mean for real working lives in our times?

This is a relevant question amid the new wave of production and other technologies, including robots and “cobots”.

The introduction of robots and other automated or semi automated machines into work processes is nearly absolutely controlled by employers. The Fair Work Act 2009 prohibits new technology like robots from being a negotiated issue in enterprise bargaining. It is wrong but it is simply unquestioned that employers should have this absolute control and that, therefore, nothing of any import can go wrong.

The second point is that the introduction of robots and other automated machines is a capital investment. There is a consequence to this that can only be fully grasped by workers and their organisations by chewing over those beloved words in “Solidarity Forever”, and understanding their 21st century economic meaning from the standpoint of workers.

Without getting too technical about it, what those words say is that all accumulated and new wealth derives from the application of human labour by workers.

Therefore, from the standpoint of workers, capital investment does not create wealth, it is a part of the total wealth that is created by workers through their labour. Specifically, it is a part of the total “profit” that is taken by the boss after paying wages and associated benefits to workers. It’s application is intended to enable employer-controlled workers produce new wealth that can be expropriated.

Commonly, workers are “taken on” to use tools and machines in factories and other work sites, to transform raw material from nature, or partially finished products, into goods for exchange and sale in the market place. Nowadays these include algorithms embedded in software or that enable the function of machines. (Most of these algorithms originate in the knowledge and thought of workers that is acquired and applied during their work process …. a separte discussion.)

Connecting the dots: robots – investment – human labour – total profit – profitability

The product (or service) must be useful but to contain money wealth it must also be “saleable”: that is, it has a use value and an exchange value intertwined within it. Out of the sale, the human labour put in leads to a total money value that is new wealth, and inside that is total profit, and also total wages. The total wages must be less than the total value that has been created by the worker. The process of work is in its essence a process of exploitation of workers by their employers.

The owners of the machines etc, and for set periods every day also of the labour potential of the workers, obsesses over whether what they have taken, the “total profit”, is enough relative to “their” investment that has been made possible in the first place by the labour of the workers they have employed.

It’s hard to think of an employer who is not obsessed with his / her profit, especially relative to the investment made, and in relationship to their competitor(s). (Unfortunately and incorrectly, the importance of profits, and profitability, is skated over or ignored even by most ”modern” labour economists.)

In dollar terms, profitability is shown by the total profit relative to the investment put into it. As an equation, profitability = total profit / capital investment.

So, what does this mean for the introduction of “robots” or “cobots “?

Robots are a capital investment by the employer, that seek to reduce labour costs and increase profits.

They are meant to make an impact on productivity: the same or more output relative to the quantity of human labour hours required to make it happen. However, in contradiction, they are also an immediate and longer term threat to profitability, the primary obsession of every employer.

With robots the labour time of fewer workers is necessary to produce the total wealth that includes the profit share and the (reduced) wages share, thus the proportion of capital investment increases relative to the input of workers, and to total profit.

For example, in one “moment”, profitability might mean total profit of 150 units divided by total capital investment of 300 units. Profitability equals 0.5. In the next “robot moment” that follows, the new capital investment increases relative to the human labour hours required (hopefully, putting aside breakdowns for the moment). So 150 units is divided by, say, 320. Profitability falls.

This is a tendency, it is not absolute. To reduce or prevent the tendency, wages and associated labour costs must be driven down no matter what the productivity.

This is why the Fair Work Act 2009 is working well for employers. It provides employers with those controls across the economic system. Thus, under 21st century capitalism, there is no logic that enables it to provide for reduced working hours in general while improving and equalizing the standard of living. To make that happen would require more universal and more powerful workers’ struggles through their unions, or in other ways.

This is a real dilemma for employers (and their champions): in 21st century capitalism (just like all capitalism before it) increasing the productivity of labour through more automated machines – robots – tends to reduce the profitability that all employers crave, and may even cause or hasten a renewed economic crisis that causes more unemployment and income security for the 90% plus.

But that’s the “logic” of a capitalist system. Production is not for social needs and values but to provide profitability and the accumulation of wealth for the minority who own and control the machines. In this system robots and “cobots” drive more insecurity.

Interim and ultimate solutions?

If you have a problem with this logic, then “it’s time” to cease the hypocrisy of singing those key words in “Solidarity Forever”.

More seriously, “solutions” like the “universal basic income” will be naïve and ultimately impractical.

Nevertheless, the real potential of automation does lie in reducing and sharing more equally productive working time.

The new leisure time that goes with that must be rooted in zero poverty and shared access to a bounty of socially and personally enriching activities. However, for that to be realised the 90 per cent, or a much bigger part of it, must take the necessary actions in support of the specific demands towards replacing with their collective selves the current owners of the machines and the systems that produce the 21st century necessities of life.

It’s worth looking at what the Corbyn and Sanders movements are coming up with in this light (and others in other parts of the world). And what the ACTU, the ALP and the Greens have to say about it. For me, that’s for another time and a good deal more reading and discussion, some of which might be found in the submissions to the current Senate Enquiry into the Future of Work.

The National Wage Review is On: What is the Union Strategy?

Don Sutherland, February 23, 2018

One of the 2 most important dates for workers this year is looming. The National Wage Review for 2107-18 (NWR18) conducted by the notorious Fair Work Commission (FWC) gets under way for real on 13 March. This is the deadline date for submissions from interested parties as to what this year’s increase should be.

This is when we might know the exact detail of the Australian Council of Trade Union’s (ACTU) claim on behalf of all workers. Yes, the claim is made also for all of those workers who are not members of unions.

Of course, we will probably also know how much the employers will say they are willing to accept. From our lived experience we know they will all oppose the ACTU Claim.

Will there be a broad public and industrial campaign in support of the ACTU’s claim for a big increase in the minimum wage at the forthcoming National Wage Review 2018? Or will it be the ACTU’s failed “business as usual” approach in which their senior officers present the claim, supported by a small number of worker witnesses, and then politely argue why it should be accepted in the face of the chorus of opposition from various employer groups against it?

Will the campaign challenge the “broken rules” in the Fair Work Act 2009 that define how Annual Wage reviews should address the issues.? Will the ACTU approach represent a serious challenge to rising inequality? Will it transform the endorsement of “defiance” from a concept to an industrial and social strategy?

These are important question for Australia’s union members and the 80% plus workers who have not yet joined their union but whose standard of living will be determined by the outcome of the review.

4 Reasons why these questions are important?

First, the evidence is getting stronger that wages have been and are still being suppressed to such a point that this is a factor in rising inequality.

This evidence has been publicly discussed for at least 15 months now and led the ACTU to announce in October (check) last year that it would pursue a claim for an increase this year (the 2017-18 Review) to the statutory minimum wage based on the concept of a Living Wage, not a “minimum wage”.

Although the ACTU had not finalised its claim at that time, this idea would envisage a claim that would take minimum pay rates to around 60% of the median wage

The lowest paid would go up to $738 based on a median of $1230 (the data at that time): that’s an $80 a week increase.

Second, a recent media release (18/2/18) from the ACTU (Assistant Secretary, Scott Connolly) complained again about the state of wages in Australia, as it should. Connolly was responding to the latest information from the Australian Bureau of Statistics (ABS) that showed a tiny increase the wage price index, inadequate for what is needed right now.

However, the media release said nothing at all about the NWR18 or the ACTU Claim. Another opportunity squandered for much needed public education about what the ACTU has been on record about.

Then the next day, in a major speech, the ACTU Secretary made only the slightest general reference to National Wage reviews and said nothing specifically about NWR18 or the ACTU’s claim. This is quite surprising.

McManus said, in registering again one of the chief complaints against the Fair Work Act 2009 (FWA09):

“Unions can make submissions on award reviews, and they do. Unions can make submissions to the Minimum Wage Review, and they do. But those roles are marginal.”

In the list of new laws she includes: “provide a living wage for all”. But no elaboration.

Third, the ACTU, its constituent unions, and more importantly Australian workers, are fast running out of time for such a campaign to be developed and for it to have a new and dynamic influence on the wages struggle.

Yes, there is a wages struggle. However, right now the wages struggle is hidebound as a public “debate” that sharpens occasionally when a group of union members hit the headlines in discrete, atomised and bitter fights over wage increases, and other issues, in bargaining for a new enterprise agreement.

This form of wages struggle repeatedly reveals its limitations. As essential as it is, it is not tackling rising inequality and poverty.

The FWC describes the Annual Review process at its dedicated web page for National Wage Reviews: please click here.

This includes the Fair Work Commission’s current timetable that provides a number of dates that could be focal points for broad union and public action, including 9 April when replies to the first submissions are required and “Final consultations” on May 15-16. (The FWC has also published the statistical information it considers necessary to work out what the outcome should be. Please click here.)

Therefore, union members and potential members are entitled to ask, “What is going on here? What is the ACTU up to?”

 Why is the National Wage Review so important for workers?

Under the current broken rules of the FWA09, and the socio economic system in which it fits, workers can get pay increases from any of 4 sources.

The first source is when, “like Oliver Twist” they beg for more and the boss “out of the goodness of his heart” gives them something.

The second is when there is a shortage of the particular knowledge and skills that the boss needs and so she retains or attracts workers with those qualities with higher wages than those previously available.

The third source is through enterprise bargaining increases. However, we all know that enterprise bargaining as a source of pay increases is falling apart and shows no signs of reversal. The FWA09’s “broken” enterprise bargaining rules determine that.

Thus, the pay levels of the remaining enterprise agreements shift closer to the minimum rates in Awards that are themselves determined by the broken rules of the National Wage Review.

The Annual National Wage Review is the fourth source. But, under “the broken rues” and established “strategy” the awarded annual pay increase is always well below what the ACTU claims on behalf of the whole workforce.

That is why previous Wage Review decisions are a factor in establishing the trend to greater inequality.

Because of the decline in the number of enterprise agreements and the decline in the number of workers covered by them, and the reduced gap between wage rates in those agreements and the minimum wage, and the increase in the number of workers dependent on the Wage Review,  the size of this year’s wage increase is critical for workers living standards.

Thus, it is in the interests of both unionized workers with decent enterprise agreements (a declining species) and non-union workers without Agreements, that there is an opportunity to engage very much more in a public campaign in support of the ACTU claim.

A strategy can be devised for the NRW18 that can attract non-union workers into (re)joining their union, and tackle the problem of wages competition that confronts unionised workers with an enterprise agreement on above average (for now) rates of pay.

The ACTU’s medium term vision showed an answer

Some readers will recall that the ACTU announced late last year that it would seek an increase to the minimum wages in this year’s Wage Review that would lead to a “Living Wage”, as the new minimum wage.

It released a report that explained the concept of the Living Wage and its logic for current circumstances.

However, up to the end of January there had been very little to zero education effort to explain this objective, and its great significance for workers, to union members or to the broader working class.

For example, this is confirmed by a quick review of the ACTU’s media releases on wages issues and associated rising inequality. (See my end note.)

Implications … what is the ACTU Executive up to?

I am putting the emphasis here on the ACTU Executive not just Sally McManus or any other specific national official of the ACTU. It is the ACTU Executive, mainly national secretaries of the ACTU’s member unions, that sets the parameters for what McManus and other leaders are able to pursue and promote in the public battle on behalf of all workers.

If there is to be no attempt at a campaign there needs to be a serious and clear explanation as to why.

Because what that means is the ACTU Executive has decided to continue with a failed strategy and, in doing so, to meekly comply with one of the most serious of the “broken rules” of the Fair Work Act 2009.

It is discarding any serious intent to be defiant. “Defiance” thus lives as a word to get a headline that registers a complaint. The encouragement of defiance, as part of every workers’ heritage, does not represent a commitment to a “new” strategy relative to that which has been pursued for the past twenty odd years. It does not commit to a strategy that enables workers themselves to learn, as a combined movement, how to win their battles, and shape their history as their predecessors have done in working class and union history.

In its own way, the most recent media release referred to above says something about the problem.

“The latest wage price index figures show that working people need more power to negotiate pay rises.”

“Working people need more power”? Well, that leaves begging how power is acquired and what it is that expresses the power that is “needed”. Is the ACTU waiting for someone to give “working people” more power? Maybe, they are waiting for a new Labor government to give working people more power? Do they expect that a Labor government will give more power to working people without pressure and power being exerted upon them? Do they assume that union leader lobbying and negotiating skills will be enough power to ensure that “working people” acquire power that they “need”?

Ultimately, the power that working people “need” is the unrestricted right to withdraw their labour. But this “power” is rarely granted, even though it is a human right. Most of all, this power is learned in the doing of it (especially for workers who are not used to grasping it) and that requires a very different strategy to the one that has failed in the past. The more defiant is the “doing of it”, the more it is that workers learn about their potential as a class and the more they attract other workers to support them and join in. This is not a “vanguardist” approach in which leading groups of workers act in heroic isolation without any thought to how their action will attract more into the struggle.

Rather, a “struggle” strategy can be developed in which power is exercised to the extent that is possible, is still defiant and is shaped to make sense to those who are not ready to join in but will do so next time. Power is taken bit by bit, and sometimes the bits are bigger and more decisive.

Above all, the phased increase in the exercise of that power by “working people” pushes the employers and the government and the FWC into a defensive position. A vital part of this is union education: not just through formal classes but in all sorts of ways, including learning and “critiquing” by doing.  The best union education is that where learning is acquired in action developed over phases that attracts during each phase new participants into the struggle. A National Wage Review campaign of this type will make sense to non-union workers and can be structured to appeal to other parts of the population also.

Union Members and Activists … what can they do?

Union members and activists have 2 broad choices. One is the current practice: leave the issue of strategy to the union leaders, the “wise heads” who “know what they are doing”. This includes joining in to support workers who are active in those bitter enterprise bargaining and similar disputes, knowing that as brave and courageous as they are, they are not ultimately a winning strategy for working people as a whole.

Another, is to decide to intervene themselves, individually and in groups, to exercise their rights as union members to set a direction for their leaders to lead from.

The second of these will be welcomed by some union leaders while others will not be comfortable and will push back against it. How to develop that strategy needs to be discussed more widely. There is a lot at stake.

End Note: Recent ACTU Media Releases about wages and inequality

https://www.actu.org.au/actu-media/media-releases/2018/it-s-every-day-australians-who-need-a-pay-rise-not-turnbull-s-top-political-staffers

https://www.actu.org.au/actu-media/media-releases/2018/pm-s-assurances-on-wage-growth-worth-nothing-when-employers-refuse-to-act-on-low-wages-despite-high-profits

https://www.actu.org.au/actu-media/media-releases/2018/new-inequality-report-shows-australia-urgently-needs-a-pay-rise

https://www.actu.org.au/actu-media/media-releases/2018/2018-ceo-wish-list-a-vision-for-low-wage-growth-insecure-work

https://www.actu.org.au/actu-media/media-releases/2018/cost-of-everything-increasing-wages-flat

https://www.actu.org.au/actu-media/media-releases/2018/equal-pay-rules-are-broken-for-women-actu

https://www.actu.org.au/actu-media/media-releases/2018/turnbull-caps-own-employee-s-wage-growth-at-2

https://www.actu.org.au/actu-media/media-releases/2018/exposed-exxon-escapes-tax-again

https://www.actu.org.au/actu-media/media-releases/2018/australian-unions-plot-course-to-wages-growth

https://www.actu.org.au/actu-media/media-releases/2018/australia-needs-a-pay-rise

https://soundcloud.com/radio-skid-row/don-sutherland-discusses-wage-theft-reports-1-december-2017.

Here On “Workers Radio”, Caroline and I discuss the latest reports of wage theft and hyper exploitation of aboriginal workers in remote Australia and meat workers in northern NSW. WE ALSO START A SERIES OF DISCUSSIONS ABOUT WAGES SUPPRESSION IN AUSTRALIA, INCLUDING NOT JUST WHATS HAPPENING BUT WHY. This discussion will continue over the coming weeks and will connect to the ACTU’s Living Wage Claim to be heard as part of the National Wage Review as it continues in 2018. Please discuss and share. Also send comments, questions and information to workersradio2017@gmail.com .

Enterprise Bargaining – Not just “Broken”, but Rotten to the Core

Recently, I discussed Australia’s “broken” enterprise bargaining laws with Caroline Pryor on Radio Skid Row’s “Workers Radio”. Click here to listen. These “broken” laws are stacked against workers and are an essential element in driving more inequality in Australia.

Later that day, Australian Council of Trade Unions (ACTU) Secretary, Sally McManus, gave an important and revealing keynote address to the T.J. Ryan Foundation in Brisbane, Queensland. (Click here to read the released version.) McManus described increasing inequality in Australia and how the Fair Work Act 2009 (FWA09, the “rules”) is contributing to that. Also, she specifically talked about the enterprise bargaining rules that are stacked against workers.

In this post I include information not covered in the radio discussion, focus on just three of the broken enterprise bargaining rules, and discuss what the Australian Council of Trade Unions (ACTU) “Change the Rules” campaign should prioritize.

In Australia, wages and conditions, and limited workers’ rights are established in 4 interactive ways:

  • the FWA09, including National Employment Standards,
  • minimum rates of pay that come from the Fair Work Commission’s annual wage case,
  • industrial awards (also managed by the FWC) that set additional minimum standards on a range of matters from industry to industry, and
  • enterprise agreements that are negotiated between workers and their unions and employers at the level of the enterprise that can set standards above the minimums in awards and the statute.

What’s happening in the real word?

Right now, all across Australia there are dozens of enterprise bargaining disputes in which workers are learning that the laws are stacked against them and its time to “Change The Rules”. (“Change the Rules” is the name of the overarching campaign coordinated by the ACTU to replace the broken rules with new ones that are fairer for Australian workers.) These enterprise bargaining disputes include complete and partial lock outs, successful and pending applications to terminate enterprise agreements that push workers onto the minimum wages and conditions in their award, and long term delays by employers to bargaining timetables.

And, enterprise bargaining itself is on the wane:EB wanes 0917a

Fore more information across the whole workforce and economy click here.

Enterprise bargaining is not just broken, it’s rotten to the core

Workers are learning that when their employer moves from a relatively benign stance to a determined and militant assault on their wages, conditions and rights, enterprise bargaining takes a long time and there are many ways in which the employer can make bargaining decent improvements extremely difficult. This is even more so if they as workers are determined to defend what they have achieved and stand together for something better. It “hardly seems worth it”.

For workers there are at least 10 different ways in which the rules are stacked against them, and these start with the core framework of the system. The current enterprise bargaining rules in the FWA09 were intended to be better than the despised laws imposed by the right wing Howard governments “Workchoices” laws. They are barely so and are very much in the same neoliberal ideological framework.

Broken Rule 1: the legal or statutory requirements are complex not simple

Workers are entitled to expect that the rules governing their working life are accessible, straightforward and in plain language. This is not true of the FWA09, particularly when it comes to enterprise bargaining.

The legal framework for enterprise bargaining is in 3 separate sections that require frequent page flipping. The objectives of enterprise bargaining are located separately from the process and other requirements, and are themselves connected to the general objectives of the whole Act that is in another section entirely. Further, how an enterprise agreement interacts with the industrial award and the National Employment Standards in the Act, the industrial action requirements, and other rights and responsibilities are complex.

This complexity provides employers with a range of options to mislead workers about the negotiating process and the content of Agreements. This more so for workers not in unions, and, especially so for workers employed by the same employer across multiple locations.

 Broken Rule 2: The statutory or legal purpose – Labor’s neoliberalism

It is a common mistake to think that enterprise bargaining is meant to provide for better wages and conditions relative to previous Agreements. There is nothing in the relevant parts of the Act that requires enterprise bargaining to produce a better deal for workers relative to previous Agreements. That may happen but there is nothing in the Act that requires it. Rather, the FWA09 establishes the prospect of concession bargaining, depending on other factors.

Even the Secretary of the ACTU gets this wrong. In her officially released speech to the T.J. Ryan Foundation on September 1st, Sally McManus says:

The system of enterprise-based bargaining was meant to deliver increased wages alongside increased productivity.

Well, since around 2000 this stopped happening5. People are working harder and smarter, workers are making record profits for their employers, but they are not sharing in it.

The purpose of enterprise bargaining is laid out in section 171 of the FWA09 and its link to section 3 that lists the Objects of the whole Act. (Click here.)

There is nothing in either about improvements to wages, conditions or rights in Agreements. The core purpose is to “deliver productivity benefits”.

So let’s look a bit closer at productivity – the core purpose of enterprise bargaining.

Every employer is in business to make profit. Productivity improvement is not an end in itself, rather, it is the pathway to improved profitability relative to competitors in the same or potential new markets, and to competitive units deliberately created and owned by the same company, often in other countries.

This core logic is inherently anti-worker. Every worker (and every employer) knows that a competitor who pays less to workers with weakened bargaining powers will put downward pressure on their own wages, conditions and rights.

The best way for workers to deal with this is, of course, to combine and connect with each other; to form and join unions across employers and industries; to act in solidarity to bring those weakened workers up to their standards instead of being forced into a race to the bottom.

For all practical purposes, “productivity” improvement is code for “profitability”. Profitability improvement comes by increasing the rate of exploitation of workers. Thus the purpose of enterprise bargaining takes workers and their unions into dangerous acceptance of the logic of competition and profitability, making wages, conditions and rights dependent on them. Accepting this logic encourages workers to think of workers in other locations and employers as their enemy.

The FWA09’s scheme for enterprise bargaining allows employers to create separate agreements or none at all, thus creating competitive downward pressure internally, as well as the normal competition from other employers. Workers can be isolated from each other in “silos” and it is more difficult for workers to get the support of paid union officials.

Enterprise bargaining is designed in the FWA09 so that any improvement is not because of it but because of other factors:

  • how benign the employer is;
  • the demand for the particular knowledge and skills held by the workers;
  • whether the workers are in a union;
  • whether they are well organised, well informed, and very determined – mindfully militant.

Broken Rule 3: industrial action repressed – capital strikes accepted

In any negotiating or bargaining process, including for enterprise agreements and breaches of them, employers and workers can use (or not) real or latent bargaining power.

The most important power for employers is the strike of capital (or it’s threat); that is, the power to withdraw, reduce, re-allocate, their capital, or threaten to do so. This action always has a big impact on workers in any bargaining process. There are no restrictions on the strike of capital in the FWA09. (Of course, there are other employer powers as well: the right to lock out without any democratic control, the right to hire and fire, the right to use use labour hire workforces, legal assistance to stop strike action, and so on.

The workers’ counter to the strike of capital, to resist being victims of competition, is the withdrawal of their labour or go slow, and solidarity across workplaces.

In the FWA09 workers start from the basis that industrial action is prohibited and is in general NOT PROTECTED from common law damages and statutory fines. (This is, in itself, a breach of Australia’s commitment to international labour law standards.)

A workers’ bargaining representative – union or non union – can apply for protected industrial action status to the Fair Work Commission (FWC). The union/s (bargaining rep) must prove genuine bargaining as defined in the Act. The employer can oppose the application. If the FWC agrees, the applicant can then run a protected industrial action ballot, conducted usually by the Australian Electoral Commission. Only workers who are represented by the union (or the bargaining representative) can vote. There are strict requirements about who in the workforce will be balloted. The employer can influence this by providing a faulty list of their employees who are union members.

The rules about how the ballot questions are put on the ballot paper are technical and strict. Industrial action becomes available for those forms of action that receive a minimum of 50% of the members provided with a ballot paper.

Once the required majority is established, the workers, usually union members, can take any of the forms of industrial action that have been voted up, and they are “protected” from common law damages and statutory fines.

However, they are required to give the employer 3 working day’s notice of the particular action they intend to take. This enables the employer to minimise the effectiveness of the action.

Then, employers can use counteraction in the form of a lock out. They do not have to apply for that right and there is no requirement for a ballot to say whether or not they should be allowed to. If an employer uses the lock out power, they can decide whether to lock out all who have engaged, or target a selected group, and arrange for others to do the work of those who are locked out.

At any time, the employer can put their own proposed Agreement to the entire workforce for a ballot and they can choose the organisation or private company who conducts the ballot for them.

The employer can apply for protected industrial action to be terminated or suspended under certain circumstances.

The employer can also apply (or threaten to) terminate an Agreement during negotiations and these applications now so common they are a predictable bargaining tactic.

Other broken rules for bargaining

These core anti worker provisions of enterprise bargaining are reinforced by a number of other anti worker rules.

These include the employer’s control over the process for informing all workers about the bargaining rights and process; the ongoing process of bargaining and the arrangements that must be made for genuine bargaining to occur, especially in the absence of a union; the ability to ensure that non-union bargaining representatives can participate at the bargaining table and given access to all workers; and employer control of the ballot on any proposed agreement, including that all workers are able to vote and that the result does not require a 50% response. The content of agreements is restricted to ensure that critical issues can not be bargained, for example access to information and communication rights for workers about supply chains and financial performance.

The priorities for the “Change the Rules” Campaign: minimal or ground breaking?

 The ACTU’s “Change the Rules” Campaign is just 3 months old. There has been a lot of education about how the current rules are broken, much of it in the dozens of disputes “resolved”, defeated or still under way all over Australia, including in enterprise bargaining. Sally McManus, the new Secretary of the ACTU has explained the message in social media, media interviews, picket line and action sites, and formal speeches like the one last Friday.

When the Campaign was launched the ACTU provided a list of what a better system might look like. There are 27 specific ways in which the workplace and industrial laws could be made fairer for workers.

Broadly speaking these fall into 3 categories: those that enable workers themselves to exercise their power, including in their unions; workers’ rights that require support from their union, or the FWC, or the Fair Work Ombudsman, and those that are about the rights of such bodies that might flow on to workers.

There has been precious little discussion and education work that enables workers, including union members, to have an effective say in what should be the priority changes.

For workers, the ground breaking changes that will make a real difference, because they are enabled (if they wish) to take matters directly into their own hands and deal with the competition problem, are rights to

  • strike (to match the employers’ capital strike rights),
  • communicate and organize beyond their own workplace,
  • struggle for and negotiate new and better standards relevant to a globalized and digitalised workplace (no restrictions); and,
  • restore Awards as the primary focus for bargaining common standards above the statutory minimums in the Fair Work Act.

Labor’s Shadow Minister for workplace and industrial relations, Brendan O’Connor, is talking up a positive approach on some important problems faced by workers but still remains coy about ground breaking change. He favours an approach where workers are dependent on what a Labor government, or a union or the Fair Work Commission can do FOR workers. He is not yet committing to ways in which workers, combining together, can use power to face their employers.

Sally McManus, on behalf of the unionized workforce and beyond is not yet being explicit about ground breaking change. This is what she said should be the priorities in her speech last Friday:

  1. More secure jobs by taking away the incentives to casualise work
  2. Restoring a strong, fair and independent industrial umpire

  3. Ensuring a level playing field for bargaining

  4. Rebuilding a relevant, modern and strong safety net for all workers

The explicit commitment to the powers of the industrial “umpire” reflects a long tradition of right wing unionism in Australia. Note that there is no direct reference to the right to strike or of Awards as the industrial instrument that takes wages and conditions out of competition. Of course, Sally McManus may indeed have covered these points in her delivered speech or in the QandA that followed.

It is likely that both union leaders and the ALP are uncomfortable or wary of talking about industrial action rights because it is true that there will be an employer and government outcry that will try to whip up opposition to any such changes.

Topical questions for further discussion … soonish?

This leaves begging a couple of questions: when is the right time to educate at the deepest levels of the workforce and publicly explain the unrestricted and democratic right to strike for workers? And, is parliamentary Labor already manoeuvring to make sure it does not happen in exchange for minimal changes only because “that’s the best we could do” and “the public is just not ready for it”?

Will union members and potential members permit this neolaboral approach to workers’ rights in the twenty first century to prevail, as it did in negotiating the Fair Work Act 2009?

Winning back basic industrial rights won’t be easy but it’s time to fight

This is one of the best written summaries of why the ACTU’S campaign – “The Rules are broken – Change the Rules” – is entirely logical (from a worker’s point of view) and should be taken forward in a big way by all of us, not just elected union leaders.

#JeffSparrow says, for example,

“The union movement was founded, almost by definition, by people with no respect for the law – given that the Combination Act of 1799 imposed draconian punishments on anyone who organised against their employer.

“In 1834, magistrates sentenced six agricultural labourers from Dorset to transportation to Australia after finding them guilty of “unlawfully administering oaths”. The so-called Tolpuddle Martyrs – lawbreakers all – are acknowledged as union pioneers in both nations.”

Jeff’s reference to the English “Combination Act of 1799” (1798?) is spot on and entirely relevant to our 21st century challenges.

“Combination” was the world used back then to describe workers meeting together to discuss why and how they could effectively negotiate with their employer for better wages and conditions. Judge made law described such meetings as “conspiracies”. It would lead to imprisonment and also deportation on a convict ship. What the employers did then was “work with” their friends who dominated the parliament to to shift the anti conspiracy laws made by judges into a statutory law.

Creating a union was legally defined as a “conspiracy” against the employer(s). It’s purpose: to prevent workers all over Britain from learning how to combine together to form unions as we know them today.

Yes, the people who created unions were workers who had not yet joined a union. Just like Uber drivers are doing right now, and it appears with the respectful support of the Transport Workers Union.

When workers prevailed and succeeded in winning a better deal – through “combination” not begging for more as a heroic individual as in Dickens’ Oliver Twist – they learned quickly that their “win” might be set back because their bosses’ competitor would be at an advantage. There would be downward pressure on what they had gained if the new standard could not be applied in the “non combined” competitor.

The solution? They had to meet – clandestinely – with the workers employed by the competitor to encourage and teach them how to win the same improvement to wages and conditions.

This is called solidarity organising and the method was learned the hard way by workers’ themselves, although it appears also supported by progressive thinkers in groups like the London Correspondence Society.

Workers had to struggle, not rely on charity, and break the law to create new democratic rights.

The 21st century Australian version of the anti combination laws, contained in Labor’s Fair Work Act, in its own way represses and penalizes workers who seek to act in solidarity with other workers.

That’s the whole framework of bargaining and associated activity that gives a huge advantage to employers over their work forces. The Fair Work Act, and its special oppressive extension in the Australian Building and Construction Industry anti worker and anti solidarity police force, can impose on workers who act in solidarity as in the late 18th century, statutory fines, common law damages and jail terms.

That’s why a fully fledged strategy – including industrial action – is necessary to educate about these rotten laws, to build active workers’ defiance against them, and struggle for new 21st century democratic rights of workers to industrial and other action that can challenge the powers of their employers.

Thats another reason why Jeff Sparrow’s take on this is interesting: the eventual defeat of the anti combination laws of the early 19th century was achieved by the growth of unionism off a very low base. Just like today.

In the 1967 an Australian union campaign that stretched over 10 years defeated the anti worker penal powers that were created by the Menzies government and governed by the Conciliation and Arbitration Commission of the day. That workers’ victory – that culminated in national strikes in 1967 – was achieved on a foundation of relatively high union density especially in big productive workplaces, although the unions themselves were divided with the right wing unions backing a yellow and Arbitration driven approach to workers’ problems.

The only new restrictions in 21st century democratic labour laws that should be introduced are those that prevent employers going on strike with the capital they have taken from the wealth generated by workers in Australia, as many are currently doing.

In our history there is a uniquely Australian way in which respect for solidarity between workers, especially solidarity bargaining for improved wages and conditions, can be restored in a 21st century form.

We will be continuing our discussions of this on 3CR radio’s Solidarity Breakfast this coming Saturday morning.