Change the rules: Tipping the scales in favour of workers' rights

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Sally McManus promoting her new book, On Fairness (screenshot via YouTube).

Current industrial relations laws are too restrictive for workers. A swift and substantive change is needed.

SALLY MCMANUS ignited confidence in union officials when she said workers should be able to break unjust laws that restrict them from withdrawing their labour.

Many unionists would like workers to have the right to strike during the term of an Enterprise Bargaining Agreement (EBA). They believe it could help better workers' conditions.

Employees can stop work if there is an immediate risk to health and safety – but, under the Fair Work Act, can take industrial action only when an EBA has expired after bargaining has broken down – which can be a brief period every few years.

So what is available to a unionist to lever for change during the term of an EBA?

There is Fair Work Commission conciliation and arbitration.

But conciliation is non-binding and if an EBA allows arbitration, it can be costly, time-consuming, resource intensive and a union can be bound by a loss. Possibly forever. 

Taking a matter to the Federal Court can take years.

Under the current system, union officials can feel like they are organising with one arm tied behind their back.

Unionists think if they had the power to use industrial action, it could tip useful power back in their favour to make change.

There is more than just pay, conditions and lost days of work at stake when industrial action is, or is threatened, to be taken. It is about the right of workers to exercise industrial democracy and have a say in their own workplace without the spectre of legal action being taken against them.

I learned this when I organised a group of workers when bargaining for a new EBA with a multi-national company that had 20% union membership.

Under the Fair Work Act, only union members can strike.

After consulting the workers the delegates and I walked into a bargaining meeting and put forward a proposed EBA to the employer.

At the next meeting, the company returned its own version of the proposed EBA stripped of good conditions and a pay-offer of almost zero.

The employer’s lead negotiator said to me: “This is the type of EBA we offer when bargaining with low union membership”.

Over the next eight weeks, the delegates and I worked hard to get the membership to 80%, re-wrote a new EBA, with better pay and conditions, before we held a workers’ meeting.

The workers unanimously voted they would begin the process of industrial action unless the employer accepted their latest EBA.

Ultimately, the workers won nine of ten items they were looking for. They had an advantage: that the private company they worked for provided a service to government no one else performed, so they couldn’t get the skills they needed elsewhere to deal with strikes.

The increased money and better conditions was important to the lowly paid employees. But there was another important win. The workers transformed into a powerful force in a very short time. It taught the next generation of workers what it takes to better their lives through industrial action.

Unionists I've spoken to believe the psychological transformation and empowerment of workers when they take industrial action is what employers fear. And it's a key reason they want union strike action limited as much as possible.

Not conducting industrial action during the term of an EBA has weakened union influence. We might now be seeing the result of this on the rest of the labour market.

McManus has helped drive officials out of the doldrums that have existed for some years.

McManus’ ACTU predecessor, Tim Lyons’ organiser conference speech in 2014, highlights where unionists have been.

Lyons said Union scandals had “dented the moral authority of trade unionism”.

He said the then-upcoming Trade Union Royal Commission was designed to be a trial of union legitimacy and its aim to present both the “end” of unions as a good thing and reduced rights at work as an economic necessity.

Our opponents want us tangled up in industrial relations law because we end up telling people what they can’t do, instead of helping them do what they want to do,” he said.

Lyons said unions win legitimacy when they are not ignored and must be unafraid of conflict.

McManus has re-energised unions and their officials by her fearless public comments.

For union officials to make more positive change, they need appropriate powers to back them up. Unionists can then often advise workers what they can do, less what they can’t.





Gerard May has been a union official and an industrial relations journalist.

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