Changing the Rules: new powers for workers, or for institutions?

In this podcast I discuss some clues about behind the scenes discussions between leaders of the ACTU and the ALP. Right now, behind the scenes meetings are discussing the new industrial and workplace relations rules that might be introduced by a new ALP government. This activity will continue right up to ALP National Conference in December, and afterwards.

Our focus is on a recent speech by ACTU Secretary Sally McManus, and a recent interview with ALP spokesperson for Workplace Relations, Brendan O’Connor. These provide some clues about whats happening now.

We also discuss: is this something that activists in the Change Rules campaign should discuss and speak up about?

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