Dr Jim McDonald blogs at Rage and Enthusiasm, and is a former senior union official and adjunct Lecturer in the Department of Industrial Relations at Griffith University.
Labor’s new IR implementation policy announced by Labor leader, Kevin Rudd, fails the central principles of collective bargaining – the real “fair goâ€? character of IR in Australia for the vast majority of workers.
While this new direction might possibly mollify business interests, it lacks guts, is bad policy, and will cost votes. It succeeds in minimising the fundamental difference between the Coalition and the ALP. Work Choices applied 19th-century so-called “freedom of contract� provisions that maximise employers’ control over the workplace at the expense of workers, with explicit objectives to reduce workers’ pay and conditions. There is some acknowledgement of this in the “fair go� rhetoric of the Rudd-Gillard policy.
But, if the Howard/Andrews/Hockey industrial relations model fails the fair go principles – which most workers would acknowledge and the polls affirm the majority of people understand that this is the case – Labor should waste no time in addressing the unfair Coalition workplace mess.
Even on the basis of industrial efficiency, a Labor Government should fix the workplace without delay. With all the research here in Australia and overseas that demonstrates the better productivity outcomes of collective bargaining [as Australian productivity falls under Howard’s IR laws] there should be no question what Labor should do, if only from from a pragmatic economic perspective.
Let alone the ethical question. A “fair go� in the workplace is an ethical issue. The international labour standards in the ILO Conventions provide ethical standards for behaviour in the workplace and “Work Choices� thumbs its nose at these standards of behaviour. So why would a Labor Government shilly shally on the ethics of running an IR system? An ethical policy approach to IR would put in place new laws that restore the balance of bargaining power between workers and employees without the delays and the concessions to corporate interests written into yesterday’s policy. The announcement sacrifices vision and principle to pragmatism at the expense of those workers who, Rudd pointed out, suffer in real terms under the present arrangements.
Corporate Australia is in the minority. It will not abandon the Coalition, which has been so intent on looking after sectional interests at the expense of ordinary Australians. But will this policy help Labor get into power? I think many workers will feel betrayed by this switch in IR policy by Labor. Gutless policy does not garner support: it feeds cynicism. Nor does it strengthen existing support: it alienates its voter base.
ACOSS says that over two million Australians are living on less than half the average wage.
I agree that the policy will alienate a lot of Labor supporters but I doubt that it will lose the party votes, in the sense of improving the Coalition’s TPP outcome at the expense of Labor’s. I’m beginning to think that Rudd is deliberately moving the ALP away from its union base with a view to claiming the centre-right permanently.
If workers – not unions but workers – aren’t prepared to stand up for their own interests by supporting unions, then the ALP can’t be expected to prop the unions up indefinitely.
Rudd is not yet in government. The tone of this article is criticism of an incumbent, and a confusion between mooted proposals and actual, enforceable law (the third paragraph is too blithe in dismissing the incumbents).
His challenge is to make two cases: first, that his proposals on IR are better than those in place under Howard (and better than those likely under a re-elected Howard government), and secondly that he has the integrity and the clout to bring these proposals (or a compromise not too far from it) into being.
Part of the problem with evaluating Rudd’s ability to meet the second challenge, as I’ve said before and as a number of Democrats agree, is the opacity of the smaller parties and their negotiations with the major parties.
Assuming there is one workplace, Jim, where the same tools can be used to address the same problems. Sometimes same-same isn’t just, and once you understand that you can understand why people you think should join unions aren’t doing so. Those same people who don’t join unions are the same people whose views are enthusiatically embraced in the third paragraph (see, I told you it was too blithe).
Do not underestimate how frustrating it was for the Coalition to have Corporate Australia (that monolithic entity of identical interests!) supporting, or at least happy to work with, a Labor government for over a decade. Those days will return but first Labor has got to win. If it cannot beat political opposition from Corporate Australia it must at least neutralise it, and it has.
As political support ebbs away from the Coalition, Corporate Australia will have to decide how hard it wants to go in to buttress a bunch of losers and annoy the incoming government. Now that Hugh Morgan has retired I defy anyone to name a single CEO or Chairman of any company in the ASX200 who will lose his/her job if Labor comes to power, and who will fight to prevent this happening.
Echoes of that frustration reappeared earlier this year when Howard was pleading for support – and what he got might be too little, too late for him.
The best reaction Rudd could have hoped for was a) not being ignored, b) muted criticism from the ACTU and c) some dissatisfaction but not apoplectic outrage from major employers. Two out of three aint bad, as they say in the classics; and three out of three is pretty damn good.
Let’s see what happens in the first, second or later terms of a Rudd Labor government, and not treat them like they’re the incumbents today. When you’re talking about pie-in-the-sky, it’s silly to be talking about how thick the pastry is and the texture of the filling.
How would Kevin lose votes? The people who would be disgusted by Rudd’s concessions are hardly going to vote instead for the party to whom those concessions were made. In any event, we should never have expected things to go back to the way they were… Howard simply advanced on too much territory to simply reset the old boundaries. First of all, it was predictable that Rudd would accept the gains made by Howard on the corporations power (and when we have a Federal Labor Government and State Liberal Governments perhaps Howard will realize his short-sightedness on that one), and secondly, its completely understandable that Labor would want to deflate Liberal rhetoric that Labor is a captive of the Union movement. Essentially, Labor is learning the same lessons that the Liberal Party learnt from its prior incarnation as the UAP. They have to assert their independence. Of course, they’ve already done so… and I can’t understand why the ALP don’t remind the Business community of the Accord, as a way of demonstrating that Labor is perfectly capable (and perhaps best positioned) to enforce economic prudence upon the Union movement. Even without a Labor Government, we have (I believe) seen increases in wages outstripping growth in productivity… which is a) what the Liberals are insinuating would happen under an ALP Gov’t, and b) what the ALP explicitly prohibited in the Accord. Go figure….
Jim, read this article, note where it is published, and go campaign (quietly and non-hysterically) for Labor in a Liberal seat that might not be considered marginal at the moment. The final sentence in that article is key to winning the election – it’s not won yet.
Andrew, the last sentence of that article reads: “There is no evidence that would wreck the economy.” The evidence, indeed, is that collective bargaining provides better productivity than individualised arrangements [viz., the empowerment of employers to control wages and conditions while workers' influence - exercised through informed negotiation - is negated or at best undermined].
At the very least Labor should, upon election improve union access to members and potential members to facilitate collective arrangements. That would be consistent with the international labour standards and necessary to implement collective bargaining. Instead, Rudd continues to undermine the standards by pussyfooting about with transition provisions.
Why should it be any more difficult legally or politically for Labor to restore collective bargaining in line with Australia’s obligations under the international labour standards in the ILO conventions than it was for the Coalition to flagrantly breach those very obligations?
Delaying workers’ access to collective bargaining reduces Rudd’s “fair go” to empty rhetoric and prolongs the institutionalised unfairness and the neo-con ideology of “Work Choices”.
Jim, those studies that yield that result concentrate on larger employers where unionisation plays a role in evening out power differentials. Insofar as there are any studies on smaller business this is less likely to be the case, and it would be silly to lump these in with “Corporate Australia”. It is tiresome to claim that whatever the question is at any given workplace, unionisation is the answer: this may have been the case when trade unions were a novelty but now that they have form this doesn’t resonate with anyone who isn’t already a trooby lever.
Thanks for helping me prove my point. You gloss over “upon election” like it’s some sort of technicality. The election is the main game right now, and Rudd is right to be firmly focused upon it. Hewson assumed the responsibilities of government before the 1993 without enjoying any of the perogatives, and you can hardly blame Rudd and his caucus colleagues for seeking to avoid Hewson’s fate.
Secondly, you underestimate the right of members and “potential members” to be listened to. The assumption behind pattern bargaining is that the union already knows what you need before they’ve even met you, that communication with members is a one-way street rather than a conversation and a dialogue between representatives and (potentially) represented.
I think people are open to unionisation, but unlike other service organisations their ability to listen to people is shocking. This sense of entitlement, the notion that you have to join your union breeds an arrogance among unionists that is repulsive to people raised in a consumer society. Combine this with mega-unions where the ratio of staff to members is overwhelming, even more when you count out those union staff focused on a political career, and you end up with a situation where members aren’t consulted and simply don’t count (making recruitment less appealling, thus the downward spiral in union membership). When you do what your union tells you to do you’re just submitting to another boss, paying more taxes.
Robert Merkel talks about a “free rider” effect, but it is the worker who has created the benefit for the employer and not the union. The position of the worker who remains a non-member rather than a “potential member” is understandable and defensible, while the union’s convenience in having that person as a paying member is not.
Derr, he’s the Opposition Leader! Everything he says is empty rhetoric! He can’t even convene Parliament, let alone get legislation through it! This may change in a few months or so, but if it doesn’t then your premature ejaculation could have the very consequences that you seek to prevent.
I’m not convinced by “international standards”. Australians will not necessarily be better off if we sign up to, and pass legislation in accordance with, ILO standards. It is not “the light on the hill to which our eyes are always turned” and it’s perfectly understandable that Rudd would mollify/neutralise reaction with “transition provisions” rather than go the dramatic but costly and unpredictable – and, yes, unproductive – route of legalistic 180-degree turns.
Assuming Labor forms the government after the election how difficult it will be to restore collective bargaining will be determined by the composition of the Senate after the election. Rudd’s got to keep his eye on this if he is to be able to govern effectively. I think he is being overly cautious but I’m sure his people are looking closely at the numbers there.
International obligations is a bit of a stale argument. Last I heard the government of Australia is beholden to the Australian electorate, through the Parliament, not to the ILO. When the constitution gives the ILO legislative power in Australia I will think differently.
So, GregM, you don’t think it significant that protections for employees’ rights are weaker here than in the much touted land of the free, the US?
I’m unconvinced as to how Rudd’s move towards the business position on WorkChoices is supposed to help win the election. It certainly won’t stop the business/government ad campaign.
As to the “unscramble the egg” argument for long transition periods, it’s just nonsense.
Exactly… Rudd’s reforms to a very shortlived IR system would arguably be less cumbersome than Howard’s reforms to a far more long-lived and entrenched one.
There’s no point confusing party policy with what might get through the Senate. Once Labor starts playing that speculative game it will tie itself hopelessly in knots. Prior to 2004 it was the norm for governments not to be able to get their policies implemented unchanged (otherwise small businesses would have been exempted from unfair dismissal laws back in 1996). That doesn’t mean parties should try to second-guess the election outcome in crafting policies.
Howard has rightly been criticised for not disclosing his real intentions until after he had been elected to government. It’s somewhat hypocritical to recommend that Rudd try to win government with the same strategy.
BTW GregM the Australian government is obliged under international and sometimes domestic law to abide by international agreements that it has voluntarily opted to ratify. That is not being ‘beholden to the ILO’, it is ‘honouring obligations freely entered into’.
Not a view shared by the High Court Ken. Not even Kirby goes that far.
That is an assertion, Mark. Care to do a comparison on legislated minimum wages, annual leave, personal (including sick and carers’ leave) and parental leave?
GregM: damn right. Ken Lovell is right about the Senate and the minor parties as I said in my first post on this thread, and the blog post to which I linked.
Mark, you can pay compensation and/or ensnare yourself in drawn-out legal action on breach of contract, creating lots of unhelpful uncertainty, or else you can put a cap on it and grandfather the existing provisions to create a sense of orderly transition. Howard’s last stand is that a change of government would be risky, and Rudd is stealing that away from him too. Besides, the number of people staying in the same job for the next five years is not as large as you might expect.
You could have a policy of nationalising the means of production, distribution and exchange in the name of the proletariat – so long as there was a lead-in period and the said dictators didn’t look too scary, you’d find a fund manager and some press gallery journos who’d gush over the idea and the markets wouldn’t be greatly affected (so long as they lasted). It’s the random violence and abrupt change that upsets the economy. If only Lenin and Stalin had worn cardigans and not been so rash, things might have been different.
The unions and Australia’s working class are in a real pickle. It seems that too many are like the frog in the boiling pot and will not jump until it is too late. Until we start saying very loudly that the ALP has been stolen and raped by a different class with its own agendas that are extremely hostile to working class Australians, the longer we will pissed on by the Australian Luvvies Party.
At some stage a bullet has to be bitten. The horrible Catch-22 is that the only possible action is actually to vote the Coalition back again telling the Luvvies to Fuck Off and start their own party.
So just to be clear GregM, are you saying Australia should not abide by international agreements that it has ratified?
Andrew,
You instal meanings that you assign to what I have written – not what I have written, and that is unworthy of you.
There is, for example, a pretty big leap in logic between the following, which I wrote – “At the very least Labor should, upon election improve union access to members and potential members to facilitate collective arrangements…. Delaying workers’ access to collective bargaining reduces Rudd’s “fair goâ€? to empty rhetoric” – and what you wrote: “Secondly, you underestimate the right of members and “potential membersâ€? to be listened to. The assumption behind pattern bargaining is that the union already knows what you need before they’ve even met you, that communication with members is a one-way street rather than a conversation and a dialogue between representatives and (potentially) represented.”
Where is the suggestion in my words that I underestimate the right of workers to a voice in the workplace when unions regain the right spelt out in international labour standards to access to the workplace? It’s simply not there. And you have mentioned pattern bargaining – I haven’t. In fact pattern bargaining worries me no less than it does employers when they have the upper hand under the current laws and pattern bargaining meets their needs. And where did I suggest that unions might engage in one-way conversation with workers? I didn’t.
And I think it is amazing that you have discovered the one reason why people don’t join unions, when all the researchers around have not come up with an answer to that question [although I haven't been reading the journals lately].
As for your observation on empty rhetoric – “Derr, he’s the Opposition Leader!Everything he says is empty rhetoric! He can’t even convene Parliament, let alone get legislation through it!” – this is a rather silly diversion, off the point. Policy provides the foundations for legislative programs once a party gets into power. In this case, Rudd’s modification of policy has undermined the past four years of ALP commitment to restoring workplace fairness to such an extent that the “fair go” is to be postponed for many Australian workers. So, yes, it is empty rhetoric – sloganeering if you like.
Stereotyping union workers – as you do no less than the self-interested business advertisements – is an unworthy ideological device which is at odds with the altruistic commitment of the thousands of union officials who work on behalf of their members. As a former union official, I know for a fact that while my union adopted adversarial positions on issues [as did the employers] it equally cooperated with the employers with as much commitment to the solving of problems. And, in my experience this is the norm, not the union thuggery suggested by an employer campaign that is geared to maintaining the employer’s balance of power in the workplace.
Ken Lovell
You are wrong on the “international agreements.” Legally, they do not mean a jot. They are irrelevant.
No Ken, I’m not saying that Australia should not abide by international agreements that it has ratified. I’m saying that the international agreements that Australia should abide by are those that it has ratified. Not those that some passing government has signed up to but has not bothered to get ratfied.
You see Ken, and clearly you don’t know this, ratification requires that the international agreements be legislated into “metropolitan law” ie the laws of the country that the courts are then charged and empowered to enforce.
Governments sign up to all sorts of agreements, often just to win a few brownie points at home. They have no intention of ratifying them, ie getting the Parliament to legislate to incorporate them into our national law. It is repugnant to our constitution that international agreements which governments have signed but the Parliament has not ratified be the law of our country
Where has the Workchoices legislation (not that I am a fan of it) involved Australia not abiding by international agreements that the Australian Parliament has ratified?
No, Jim, you don’t underestimate it. You ignore it as so many unions do. Under your model unions are the channel of communications between workers and their bosses and if the worker’s wishes go against the union line then they won’t anywhere. One size fits all is the efficient way (for union organisers) to handle things. Unions don’t have a service orientation and that’s why, despite your unsurprising lack of interest in finding out, employees are leaving unions in droves.
GregM thanks for the little lesson on constitutional law, most informative and it would have been even more so if I hadn’t been well aware of it already.
I commented earlier that ‘BTW GregM the Australian government is obliged under international and sometimes domestic law to abide by international agreements that it has voluntarily opted to ratify.’ You see the last word there, ‘ratify’? Not ’signed up to’ but ‘ratified’. I understand that you might be excited to know the difference between the two expressions but assuming that you’re the only one who’s in on the secret is somewhat … immature.
You responded ‘Not a view shared by the High Court Ken. Not even Kirby goes that far.’.
In reply I asked ‘are you saying Australia should not abide by international agreements that it has ratified?’
To which you now say ‘No Ken, I’m not saying that Australia should not abide by international agreements that it has ratified. I’m saying that the international agreements that Australia should abide by are those that it has ratified.’
In other words you’ve agreed with my original comment. Now you can go argue with John Greenfield, who disagrees with both of us.
GregM, in the context, it should have been clear that I was talking about the right to collective bargaining. I was writing quickly from a net cafe, so my apologies if I didn’t make it clear.
Some sort of populist nationalism doesn’t seem to me to invalidate international comparison. And it’s worth noting that before the very expansive view of the corporations power taken by the High Court in the WorkChoices case, much of federal labour and employment law rested on the external affairs power and thus the parliament’s power to legislate in many instances derived from Australia’s subscription to ILO conventions – for intance, that on equal pay between men and women. I hope people don’t oppose that principle because it’s derived from international law.
As to whether unions are doing a good job or not – sometimes they do, and sometimes they don’t. Rudd’s model won’t “impose” “union bosses” on anyone. In fact, arguably it’s retrogressive in that it continues to prevent unions from doing an effective job – particularly in representing the interests of the lowest paid in the labour market.
Andrew, you wrote:
The power the federal parliament now has under the corporations power is very sweeping. The fact that Rudd is talking about so-called “common law contracts” operating as in effect statutory employment instruments demonstrates that the ALP’s legal advisors are well aware of that – the parliament could easily negate any action for breach of contract. WorkChoices snuffed out existing rights people had under state law – in some instances when actions were already before state courts. People really should reflect on the almost untramelled power the federal parliament now has – gained under precedents set by Howard – and reinforced by an acquiescent High Court. It’s for that very reason that countervailing instruments which create positive rights for citizens are so very important now. The debate should move on a long way, if only people stop to analyse what’s actually occurring.
Ok then, Mark. Just on the issue of collective bargaining then, not a right to those employees who don’t want to be represented by unions, rather an infringement on their rights, but I will leave that aside, care to do a comparison on legislated collective bargaining rights between Australia and the much touted land of the free, the US?
Sure. In North America (the system works in a similar way in the US and Canada), employees at any given workplace vote on whether they wish to negotiate a collective contract, and if a majority do, the employer is bound to negotiate one.
In Australia currently there is no obligation on the employer to negotiate collectively even if 100% of employees wish to do so, and there is no obligation to recognise a bargaining agent either for an individual or a collective agreement. In theory, you have a right to appoint anyone to negotiate on your behalf – it could be a lawyer, it could be an industrial advocate, it could be a union, it could be your mum (and that’s serious – think about 15 year old high school kids). But the employer is under no obligation to recognise them as your agent.
Btw – contrary to the myth, there’s usually nothing to stop employees on a collective agreement negotiating individually for better pay or conditions – particularly if the agreement facilitates upward flexibility. I’m not sure why anyone in practice would object to that – particularly since in the absence of either compulsory or facilitative provisions for union membership, if they have a good faith objection to being in a union, they don’t have to be.
But ken you haven’t answered my questrion:
Can you do so? That is, after all, the very issue you have raised.
See here for an answer to your question, GregM:
http://www.ituc-csi.org/IMG/pdf/ITUC_submission_to_WTO_2007_final_Australia__2_.pdf
Jim, I found your post somewhat vague. I gleaned that the current ALP policy is bad: it “fails the central principles of collective bargaining” … “lacks guts, is bad policy, and will cost votes”. Instead, Labor should “fix the workplace without delay”, and “restore the balance of bargaining power”.
OK — but what does all this mean in practice? I admit I know little about IR, so what would a better ALP policy involve, in detail?
The ALP press release said, “You will be free to collectively bargain with other employees in your workplace if you choose to do so, whether you’re part of a union or not. For non-unionised workplaces this will result in a genuine non-union collective agreement, approved by Fair Work Australia.”
Why does this policy fail the principle of collective bargaining?
No I haven’t Greg, you have, when you said ‘International obligations is a bit of a stale argument.’ Stale or otherwise, it wasn’t an argument of mine.
This little game seems to be spreading like horse flu amongst the right this week.
Jim,
You insist that your words must be taken at face value, when the realities of workplaces in which I have worked, or of which I am aware, would yield negative results for workers if the measures that you support to be enacted.
I don’t believe that unions have an automatic right of entry, and I don’t believe that unions are necessarily responsive to their members’ interests. In theory, this is inconceivable – members are unions! – but in practice it doesn’t happen. If that upsets you, or your perception of me, then too bad.
Nobody takes pre-election commitments literally, Jim. Look at the achievements of any previous Labor government, then go back and see what, if any, link exists between those and the resolutions of the relevant state/federal ALP decision-making body. Bugger-all, I’d suggest. You’ll note that the past four years includes no Labor government, and the link between policy and practice is much stronger after the hurlyburly of the election is done, not before. Your words assume victory and hold Rudd to a higher standard than Howard.
It is nonsense to imply that every single union official in Australia, past or present, operates always and entirely from a position of altruism. Absolute nonsense. Not only that, it breeds a repulsive self-righteousness that inhibits the uptake of opinions from others (including current and “potential” members). This is no more accurate than the stereotype you would load onto others.
I know full well that union officials aren’t thugs, and that they’re not altruistic saints either. The best of them do a difficult job under trying circumstances. The worst of them are self-righteous jerks who are so focused on toeing their line they don’t listen to anyone else and regard othrs as the enemy. Just like management really.
Mark, the power of the federal government has always been sweeping. It could pass a new law for every day of the week, and compliance costs would skyrocket.
Rudd is doing well politically, generally and with business as an interest group, by projecting a steady, gradualist image of reform. This means he’s not promising far-reaching change, requiring significant adjustments for all concerned (for good or ill) in the short term.
I agree with you about the nature of the power and the need for analysis. I hate the way that ministers refer to their outfit as “the Australian government”, which is fine if you’re talking about relations with other countries but the implications of this usage is that those who take positions against the Federal government on particular issues are unAustralian.
I don’t agree (not that I’m accusing anyone of advancing or defending this notion) that to ratify an international agreement is to absorb it whole into Australian law, as happens in US law.