Why and how the Fair Work Commission’s cuts to Sunday penalty rates can be defeated.

by Don Sutherland, 25/2/17

Last week Australia’s industrial “umpire”, the Fair Work Commission, legalized a big cut to penalty rates for Sunday work for Australia’s lowest paid and most vulnerable workers in precarious work. (Click here and click here for the official summary of the decision.) Implementing the cuts is not compulsory. Anyone who thinks neoliberalism is dying needs to take a deep breath and step into the real world.

Like many others across the union movement and beyond I am very angry on several counts with this decision. Above all it does great harm to the lives of thousands of workers (click here for example), even though it will increase the take home profit of their employers.

There is a lot of material being posted in both mainstream media and in many sources across social media about why this decision is bad, some of it before the decision was handed down and of course a lot since. This article does not add to that.

Rather I focus on ideas about how the workers and union movement can respond.

How should the workers’ movement respond?

In my view not just with anger, but with a widely, deeply discussed and developed strategy to win the reversal of the decision or to prevent its actual implementation.

I am against a “strategy” based on immediate anger that sets our movement up for an urgent, satisfying day out and another “glorious defeat”. And I am also against a defeatist walk into the arms of the ALP as the heroic solution.

Rationale for a strategy

This Full Bench decision of the Fair Work Commission (FWC) comes out of an Award review that is required by the Fair Work Act (FWA). The Award review is very much an industrial relations club exercise. The FWA review involves either union peak bodies or employer peak bodies putting to the FWC ways in which Awards should be changed, with the capacity for others, especially governments and political parties, to join in. The parties present their claims and counter claims, then provide evidence in an increasingly judicial process that involves “expert” research and / or witnesses. There is not much industrial organising that goes on in support of union claims or counter claims these days.

In this current review all Awards are under the microscope. The focus in these particular Awards for workers in hospitality, pharmacy, fast foods has been on their penalty rates, especially the penalty rate paid for working on Sunday.

Employers in the industry and beyond have over several years invested big money and resources to convince the FWC to agree to cut penalty rates for Sunday work. They have been supported by the Murdoch press, a big posse of commentators from right wing think tanks, and all major employer organisations. The union movement has been the major source of opposition. Originally, employers wanted cuts to all penalty rates but decided for a strategic reason to focus on Sundays. Do not doubt that their “victory” last week to get Sunday rates cut is a foundation for a renewed assault at some time in the future for further cuts into both Sunday and Saturday rates and public holiday rates.

While the employers were investing big in their own way to achieve their victory, the workers’ effort – mainly through their unions – was valiant and well-intentioned but puny in comparison. It was entirely defensive, and accepted the rules of the Commission and the Fair Work Act.

The employer strategy successfully used prominent Labor politicians, some of them willingly, and ex politicians (most notably perhaps Martin Ferguson, formerly a President of the Australian Council of Trade Unions).

The employer strategy relied very much on today’s working class  historic memory loss  about what an Award actually is. Nothing significant has been done by unions to counter this with worker education. Australian unions, generally, have opted to devote most resources to enterprise agreements as the vehicle to protect and improve wages and conditions.

Remember, the employers originated and escalated this war on living standards, not the Fair Work Commission.

This very bad outcome is a reflection of the current balance of power between Australia’s 21st century capitalist class relative to that of the working class.

That is the situation that our strategy must change.

A working class based approach to our strategy

Can we build a strategy, loaded with mindful militancy, that can reverse this decision and also the whole current momentum against working people? (Facilitated in the bosses’ favour by the Fair Work Act, e.g. lockouts, agreement cancellations, and the new Building Industry Code to be enforced by the construction industry’s own industrial police force against construction workers and their unions.)

Of course we can. Here are some ideas.

The first big strategic decision for all union leaders no matter what level of the union movement we are active in: should we leave the reversing or whatever of the decision to heroic leaders, those at the “top” of the union movement and especially those in the ALP and the Greens in the parliament? Will calls to the government for the government to change the statute re-build our numbers and our power?

Or, should we return en masse to a conviction that the workers in these industries, and their brothers and sisters in others, can grow together as a socio-political force to reverse the decision themselves through their own industrial and political action?

The union movement at all levels must, absolutely MUST, embrace this second approach. Why? Because we must see workers of the twenty first century as capable of learning to struggle for their objectives not as objects whose conditions of existence are decided for them by elites, well-meaning or otherwise?)

That still means lots of education work and lots of communication that is educational (not cheap slogans or cute and clever memes,) leading to days of action on carefully selected dates. Days of action can be seen as the building blocks to more serious forms of action, including a national strike that can decide the struggle in favour of the workers.

Industrial strategy leading the way

The Commission is now waiting for submissions from the parties about the timing and process for phasing in the new reduced rates. Depending on each award, the critical dates seem to be in late March and early May.

After that the Commission will set dates for the start of the new reduced rates, probably later this year.

So, for example, this year these union / workers days of action might be 2-3 days before or on the day of the “submissions” hearing and then again 3 days before the start date.

Remember, employers can chose not to reduce rates. Embedded in these days of action there must be a workplace, public, social and political demand that each individual employer NOT implement the decision, but infused also with basic education and learning about “what is an Award”, “who are the employers”, “what is their strategy”, and “what is the Commission”. (Of course, many employers will try to “stay sweet” with their workers by telling them that it’s not their fault and they have no choice but to implement it.)

To the extent that it is necessary, a secondary level of campaigning in these 2 periods might help reinforce worker pressure on MP’s to come out at a local level to urge local employers not to implement the decision.

How long will it take to win – the trajectory for winning?

The second big strategic decision is a notional time frame that this campaign will take 2 to 5 years to win. It would be nice to win sooner but expectation that we can – in my view – misjudges the power of those who want this decision against the current power of those of us who oppose it.

We need time for education work and union growth organising to build the power to win. We do not have it right now, just the same as the employers did not have enough power to win their objective in 2007. The employers have understood strategy much better than us and have been ruthless enough against working people and their unions to stick to their strategy and be flexible in applying it.

We have to be every bit as cold and calculating as they have been and more.

Therefore, these days of action MUST be educational and  must be seen as building blocks to very big and powerful actions in the future that will be more decisive.

Our strategy will have to escalate over that 2-5 year period in the spread and depth of awareness among the workers immediately affected and those who will experience the flow on effects of it.

A strategy of this type must culminate with the consequence of economic pain for the employers who wanted this decision and who decide to implement it.

The next award review will be in 4 years or so, possibly less. That is the moment for the first “really big culmination” of our strategy in which employers can face the prospect of real economic consequences for their actions.

Within it there is the opportunity for the union movement to actively regrow from within the 21 st century working class, basing that on education-driven organising of both union members and potential members.

This decision to cut penalty rates is one element of ruling class momentum against all workers … the whole of the working class.

We can add to that the employers threat to re-locate operations to off shore low wage havens, use of lock outs during bargaining, demand for major concessions in enterprise agreements, and refusing to bargain for any improvements about job security or wages or safety, employer applications to cancel agreements and drive their workers back to the minimum wages and conditions in Awards, penal powers against any workers who take industrial action that is not approved by the FWC, and the government’s new Building Industry Code policed by the building industry commission. This is a considerable array of power for employers that is facilitated by the Fair Work Act.

Penalty Rates Plus

Genuine working class power can be built to demand at the next Award review and even before not just the restoration of current penalty rates but also a significant increase in the minimum Award rate, and automatic casual conversion after 3 months for those who want it.

These issues are relevant to all other Awards as well. We are talking about common, multi industry actions to take on common big employment problems.

This will be a campaign for all workers because the huge gap between award rates and union negotiated agreement rates is contrary to the fundamental rationale for unionism, and should not be acceptable to any unionist.

The focus of the whole movement must turn steadily (although not absolutely) to AWARDS and away from enterprise agreements.

Finally, this “ordinarily people” rooted strategy will require that the Fair Work Act (including its penal powers against workers) be defied, and probably broken, and ultimately genuinely re-written for workers’ benefit.

That’s not a reason not to do it but it is a reason for a lot of educational work in preparation.