Mr Watson, I refer to your comment that WorkCover is such a good place to work and that is why so many people want to work there. How does that statement stack up in light of the reports in the press about bullying and harassment in WorkCover? Indeed, your own survey showed that that is a real problem within your agency?

Mr THOMSON:

There were some reports. The Public Service Association [PSA] conducted a survey about bullying and harassment within WorkCover in 2007. Only 179 employees out of almost 1,200 staff of WorkCover responded to that survey. WorkCover conducted its own corporate survey, “A Great Place to Work”, around the same time and more than 820 staff completed that survey with more than 65 per cent indicating that WorkCover was a great place to work. Since those surveys, both WorkCover and the PSA have been working together to devise new ways to deal with bullying and harassment issues in the workplace. A further internal corporate survey was undertaken in August 2008 with more than 72 per cent of staff responding, giving staff another opportunity to provide feedback on their workplace, and to enable a comparative analysis with the previous survey.

In 2008 WorkCover and the PSA formed a bullying joint working party to ensure WorkCover continues to build a positive and constructive workplace culture. The working party met on a six-weekly basis during 2008 and the early part of 2009. As a result, a working with respect workshop has been and is being rolled out progressively across the organisation. It complements training that was already in place in an undertaking in 2007. In addition to preventing bullying or to minimise the risk of bullying being able to occur, a policy was developed aimed at identifying bullying risk factors and developing control strategies.
The Hon. MATTHEW MASON-COX: It sounds like a primary school rather than a government agency responsible for workplace safety.

Mr THOMSON: There are two things. WorkCover has two roles. We are an employer in our own right and we are also the regulator, so we have to be clear to specify the differential between both of those. I guess, if I can give you a little bit more information, the working party which is joint between the union and the employer developed a series of procedures that provide staff with options for support and remedial action if they experience, perceive or see, or witness bullying. They are able to take their concerns to a supervisor, manager, directors general managers, or the manager of human resources, to their occupational health and safety representative or committee, the employee assistance service, or directly to a newly developed bullying response service.

The service that was introduced in January 2009 provides individual staff members with an opportunity to receive independent advice or support or see a professionally qualified workplace psychologist. In addition, we have developed the respectful behaviours guide, following extensive consultation that was released to all staff. WorkCover and the association conducted a joint confidential survey of staff around respectful behaviours in the workplace in September 2009, with more than 750 staff responding, and the results provide strong evidence that respectful behaviours are being actively demonstrated within WorkCover. We do, as an employer, have firm policies in place to address bullying and harassment and all reported incidents are taken seriously and addressed promptly and appropriately.

The Hon. MATTHEW MASON-COX:

I refer to the strong results from the 750 people who responded in the September 2009 survey. Would you further elucidate the specifics of that survey?

Mr THOMSON:

There was a range of statements that people were asked to respond to and, I guess, the top 10 were in the affirmative. Any issues of concern around that were very much at the bottom of the 90 odd questions that were asked, to get a flavour of the issue, if there was an issue, and if there was, the extent of the issue. The response very clearly came out, I guess, with a favourable response. Yes, there was the odd occasion that some people may have experienced it or may have witnessed some issues, but it is very much in the minority. The majority of the attributes displayed were in the positive in relation to the way that you have got 1,300 people operating in an organisation.

The Hon. MATTHEW MASON-COX:

Would you provide the committee with the specific statistics of that survey?

Mr THOMSON:

We can provide some information on that, yes.

The Hon. MATTHEW MASON-COX:

WorkCover seems to have conducted a number of surveys over a period of time and, more or less, there seems to have a focus on this issue in the last couple of years. Why is there a problem with bullying and harassment in WorkCover?

Mr THOMSON:

The first point, a couple of surveys were not focussed around bullying and harassment, they were about trying to understand what things we needed to do as an employer to get better engagement and better interactions, and just to see where we stood as an employer. So we were being proactive to try to get buy-in from our staff at a broad organisational—

The Hon. MATTHEW MASON-COX:

Why were you being proactive in the first place?

Mr THOMSON: Because that is what being an employer is about, it is about trying to look after staff and engage with them so it can work with our staff.

The Hon. MATTHEW MASON-COX:

I put it to you that you were being proactive because you knew there was a problem about which you had to do something.

Mr THOMSON:

I do not think that is necessarily the case.

The Hon. MATTHEW MASON-COX:

Not necessarily the case?

Mr THOMSON:

I do not think it is. Yes, we have had the odd issue like most employers do. As a regulator—and John is probably more appropriate to talk on this side—we go out and give advice and guidance to employers about how to manage issues of bullying and harassment that occur in a lot of workplaces around, not just New South Wales, but the country. We are trying to get a clear handle and understanding of our staff’s perceptions and getting their buy-in and where there were issues, be they perceived or real, try to take action proactively to deal with them.

The Hon. MATTHEW MASON-COX:

Is it not true that those issues have been in workplaces for years and years? In that case, why has it taken WorkCover so long to be proactive about such issues that have been a problem for a long time?

Mr THOMSON:

I have been in the organisation nearly seven years and I would say it has not been a significant issue inside our organisation. There may have been the odd issue here and there but it has not been a major driving force inside the organisation.

The Hon. MATTHEW MASON-COX:

Are you aware of the article in the Daily Telegraph that documented that 86 per cent of staff of WorkCover who were surveyed nominated that these were problems? I know you have carried out a few surveys since then but it continues to be a problem according to sources that we have noted. In fact, as late as last week officers of WorkCover’s licensing unit were leaving the WorkCover building after being bullied and harassed. Is that true?

Mr THOMSON:

I think the survey that the Telegraph is alluding to is the one that was one by the PSA separately and, clearly, the way you ask questions and develop questions relative to a survey can design or drive particular results. I guess, the bullying and harassment survey and the respectful behaviour survey which we did as a joint exercise between the PSA and the organisation has actually demonstrated that the issue is not a significant issue inside the organisation, and that is a joint one which has been shared between both the PSA and the organisation.

The Hon. MATTHEW MASON-COX:

Why is it that as late as last week—this has been put to us and perhaps you can verify this—officers of WorkCover’s licensing unit were seen leaving the WorkCover building after being bullied and harassed? Are you aware of that?

Mr THOMSON:

I am aware of an incident that occurred in licensing. I would not agree that it was through bullying and harassment.

The Hon. MATTHEW MASON-COX: Will you take that on notice and come back with a full explanation as to what has happened in that regard and what steps you are taking to address the situation as you see it?

The Hon. PENNY SHARPE: How can you answer that question? Just because someone was seen outside a building you are assuming that there is some suggestion—

The Hon. MATTHEW MASON-COX: He has just put to the Committee that there is a problem and he will go back and have a look at the circumstances.

The Hon. PENNY SHARPE: He did not say there was a problem. Stop verballing the witness.

Mr THOMSON: There was an issue inside, but I am not saying it was bullying or harassment. That has been dealt with and managed with the staff as you would do in any organisation. It has already occurred inside the organisation and been resolved as far as the parties are concerned.

The Hon. GREG PEARCE:

Yes. Who is responsible for your IT management?

Mr THOMSON:

I will take that question on notice.

The Hon. GREG PEARCE: Last year there was significant expenditure on computer software. Were there any particular major projects underway?

Mr THOMSON:

There has been an ongoing project called the corporate data repository. That is where we collect and store all data relative to the workers compensation system for self and specialised insurers, including scheme agents. That very significant piece of work has been carried out over time. In the past 12 months the expenditure has been about bedding that down and getting increased stability across that platform and the like. It has certainly been a significant piece of work that is now delivering the appropriate outcomes.

The Hon. GREG PEARCE:

Was that conducted by external consultants?

Mr THOMSON:

The majority of IT development and the like is handled in house. We have developed the corporate data repository in house.

The Hon. MATTHEW MASON-COX: Are you talking about a data centre?

Mr THOMSON: It ends up being a piece of software. We develop the software using a certain language. I am not sure that that is the full cost, but it would certainly be a component. We do buy other software such as Microsoft Word and things like that. But the significant piece of internal work has been the management of the data elements for the workers compensation system.

The Hon. GREG PEARCE: Can you provide some numbers on what has been expended on that project? It is obviously lost amongst the general figures. How many people are working on it?

Mr THOMSON: The level of work has reduced because that project has been done over three or four years. It is now merely maintenance and an enhancement of effort. The numbers involved in that area have reduced.

The Hon. GREG PEARCE: Have people moved on to other jobs?

Mr THOMSON: There would be other activities as we move forward.

“To have a genuinely national system there will at some point need to be a rationalisation of the ten-plus State and Federal agencies and tribunals.  Industry, however, would have serious concerns with a new agency that diminished the functions and independence of key institutions within the WorkChoices workplace relations system such as the Australian Industrial Relations Commission (AIRC), the Australian Fair Pay Commission (AFPC), the Office of the Employment Advocate (OEA), and the Office of Workplace Services (OWS).

“It is far from clear how Fair Work Australia would operate but the radical concept of bringing together into one authority the functions of adviser, investigator, prosecutor, mediator and judge would create serious conflicts of interest”.

“Under the current system we have a clear separation of powers and functions.  Under Labor’s plan the super regulator would be responsible for advising on the law, investigating alleged breaches, pursuing prosecutions, determining whether breaches have occurred and imposing penalties.  It is much like combining the functions of the police, the Director of Public Prosecutions (DPP) and the courts.  In the workplace relations context, it is the equivalent of the Industrial Relations Commissioner and the advocate for one of the parties being the same person.”
“At the same time that the ALP is proposing to introduce much more union friendly workplace relations laws and roll back WorkChoices, the AIRC would potentially lose important powers to deal with unreasonable union behaviour.”

“The AIRC’s role has changed under WorkChoices but it maintains significant roles and powers which should not be diminished such as the power to:

- Issue orders to prevent and stop unlawful industrial action;
- Suspend or terminate bargaining periods (and hence the right to take industrial action) where industrial action is threatening to damage the economy, where pattern bargaining is occurring etc;
- Oversee the system of secret ballots to authorise industrial action;
- Rationalise and maintain federal awards;
- Subject to various exemptions, determine whether a dismissal is harsh, unjust or unreasonable;
- Oversee the system of registration of unions and employer associations;
- Revoke the entry permits of union officials who engage in inappropriate behaviour.

“While the current level of industrial action is very low it was only a few years ago that construction and manufacturing unions were wreaking havoc on industry with pattern bargaining campaigns and industry-wide industrial action. The AIRC stepped in and used its powers to the fullest extent to protect the national interest and to stop unnecessary losses of income by employers and employees. If industrial action breaks out under a new workplace relations system, a strong tribunal is needed. The AIRC has proved that it can deliver, but will Fair Work Australia have the teeth and the will?” Ridout said.

Online and offline, bullying is a serious workplace problem. When did Australia become a land of cowards who puff themselves up at the expense of others?

Online bullying became a worldwide talking point in November 2008 when 49-yearold Lori Drew was convicted of cyber-bullying her daughter’s classmate Megan Meier, who committed suicide. In the same year, the Telstra Foundation set aside $2 million for a three-year program aimed at reducing bullying and harassment of children via the internet and mobile phones.

But it’s not just children who suffer from bullying, and it’s not just online. A Griffith University study showed more than 90% of workers experienced some form of bullying during their careers. Ninety percent! The research found bullying incidents, on average, cost $20,000; that’s a collective national bully bill somewhere between $6–13 billion a year. Employers found guilty can face fines of up to $825,000 from WorkCover and can be forced into large payouts from the Industrial Relations Commission.

From a young age, I always wished that I would not follow the crowd that scuttles by and ignores a person in distress. I often catch myself whispering a silent word of thanks for my parents, and especially my dad, who is the bravest man I know. He is the only person I can put money on to step in to help someone in need, regardless of the criticism or consequences.

So when I got a letter from a friend seeking advice about a cleaner she knows who was being bullied, I had two choices: follow my genetic conditioning and act, or ignore it and override my sense of right and wrong.

It turns out the man in question had grounds to sue for assault. He had been physically pushed around by another department worker; sworn at and abused by a 20-something upstart who thought tough talk would get her ahead; given tasks not in his description; and the target of blame when others hadn’t done their jobs. Instances were caught on security camera and witnessed by various other workers over several months, which galvanised the case in his favour. He was frightened to get help because he was on a temporary working visa and was sending money to his family overseas. He thought silence would be better than getting help.

This story had a happy ending. It started with three colleagues writing separately to the company manager and raising concerns on his behalf. The concerned staff then held individual meetings with the boss. The boss made it his business to sort the mess out by speaking to the two bullies and issuing them with warnings. He then met with his manager and asked for regular updates.

The man who’d been bullied has blossomed in the knowledge that he was working with people who cared enough to step in when it mattered. For him, that was enough. The bullies have changed too, knowing they were against not just one, but many.

Perhaps tougher penalties for workplace bullying – a fine system with money going to charity or a shame file for the office piglet – might encourage a re-think.

by

Marguerite McKinnon

Australia is one step closer to a national industrial relations system under draft laws the federal government has introduced to parliament.

The legislation aims to end the overlap and duplication of state and federal workplace relations systems that continued to cause inefficiency and uncertainty as well as legal complexity, Workplace Relations Minister Julia Gillard says.

The Fair Work Act will be amended to provide a mechanism for all states and territories to sign over their industrial relations powers to the commonwealth.

States will be able to terminate their referral if a future amendment to the Fair Work Act is inconsistent with the fundamental workplace relations principles set out in the inter-governmental agreement and the Act.

For instance, it is required that the Fair Work Act should provide for and continue to provide for collective bargaining at the enterprise level with no provision for individual statutory agreements, otherwise known as Australian Workplace Agreements.

Western Australia and New South Wales are the only states that haven’t agreed so far to a referral.

The NSW Labor government has yet to make up its mind while the WA Liberal government has declared it won’t sign up to a national system.

Ms Gillard used the introduction of the draft laws to urge the WA government to reconsider its decision.

Debate on the Fair Work Amendment (State Referrals and other Measures) Bill 2009 was adjourned.

It has also called for the power to target companies it believes are underpaying female staff and send in inspectors to conduct pay audits.

The agency’s director Mairi Steele said women’s progress in the workplace has stalled.

She said it was unacceptable that a third of companies with more than 100 staff are ignoring a legal requirement they report to the Federal Government on what they are doing to improve opportunities for women.

In its submission to a 10-year review of the Equal Opportunity for Women in the Workplace Act, the agency says renaming the law would recognise that sex-based discrimination affects men and women.

The submission said most organisational cultures continue to reflect the assumption of a ”male norm”, and women with family care responsibilities were ”deviations from that norm”.

Encouraging men to manage childcare responsibilities would also ensure women are not blocked from leadership roles.

”Until more men access workplace flexibility, these arrangements will continue to be seen as ’solutions’ to the ‘problem’ of women’s employment rather than a means of supporting employees in managing their full range of responsibilities,” said Ms Steele.

The agency wants tougher enforcement powers and random audits to check companies are taking measures to improve gender pay equity.

It wants the Tax Office to provide it with a list of all companies employing more than 100 staff. Inspectors from the Fair Work Ombudsman’s office should be sent in if a company is suspected of misrepresenting the information it provides.

Companies bidding for government contracts should also be required to show they comply with the equal opportunity for women act, the agency says.

by

KIRSTY NEEDHAM

Workplace Relations Minister Julia Gillard has brushed off accusations the government has tried to silence debate about the fate of the Howard government’s construction industry watchdog.

Unrest over the Australian Building and Construction Commission (ABCC) and a feeling among many unions the new industrial laws do not go far enough led to Ms Gillard being booed while speaking to the ACTU congress last week.

Australian Workers Union national secretary Paul Howes said he was puzzled at the government’s reaction to union leaders advocating a second wave of industrial laws and the abolition of the ABCC.

Mr Howes told The Australian newspaper it was unwise of the government to go on a union-bashing exercise over views that were held by a majority of the federal Labor caucus.

But Ms Gillard made it clear in a blunt speech in Brisbane last Wednesday that unions should focus on making the new Fair Work laws a reality in workplaces now, rather than looking for more changes.

Prime Minister Kevin Rudd backed his minister, saying there have been problems in the building and construction industry, especially in Victoria and Western Australia.

“We have a responsibility to make judgments for the overall strength of the economy,” Mr Rudd told Sky News on Tuesday.

He said there were limits on how far the government could “responsibly” go in unwinding the previous government’s Work Choices industrial laws.

Unions are unhappy the government intends to keep some of the ABCC’s powers as part of the new Fair Work Australia when it begins on January 1, 2010.

They have been particularly critical of the body’s coercive powers to investigate illegal union activity which can lead to hefty fines and jail terms if disobeyed.

The government will unveil how much of the ABCC’s powers it will retain in the next two weeks as the final pieces of legislation introducing the Fair Work system go before parliament.

Ms Gillard said Mr Howes was entitled to express his views but that she stood by what she said at the congress.

“Our focus is on delivering that new system,” Ms Gillard told reporters in Melbourne on Tuesday.

“I would suggest everybody’s focus should be on making sure that that new system is not just words on a page in a statute in Canberra but it’s actually living and breathing and making a difference for working people in their workplaces around the country.”

Mr Rudd said the government would make a decision about the ABCC powers based on a recommendations handed to Ms Gillard in April after an inquiry by former federal court judge, Murray Wilcox, QC.

“I meant what I said prior to the last election and I said about the future of the ABCC, that it would continue and that there would be a replacement body by 2010,” Mr Rudd said.

New good faith bargaining rules and unfair dismissal laws begin on July 1 but the bulk of the new system comes into force on January 1, 2010

Prime Minister Kevin Rudd has backed away from a pledge that no worker would be left worse off by award modernisation, saying that remained the government’s objective but was never a guarantee.

Under Labor’s overhaul of the system, more than 4,000 state and federal awards are set to be streamlined into 130 new national awards.

But the Australian Industrial Relations Commission (AIRC), charged with the responsibility of simplifying the system, has found that the overhaul is likely to result in higher costs for employers and cuts in take-home pay for some workers.

The ruling undermines Labor’s Forward with Fairness policy, released ahead of the 2007 election, which stated “transitional arrangements” would be put in place so that those covered by state awards “will not be disadvantaged” under the new national system.

Workplace Relations Minister Julia Gillard has also repeatedly given assurances that no worker or employer would be worse off as a result of the award modernisation process.

Earlier this week, Ms Gillard repeated that pledge, telling ABC TV’s 7.30 Report that the government’s industrial relations legislation provided “a take-home pay guarantee for employees”.

However, the prime minister on Thursday said it was only ever an objective that no worker would be worse off under the new system.

“The objective for both … for employers and employees, consistent with what we always said, is that when we introduce this modern awards system, that it’s not intended that there be a disadvantage for employees or employers in terms of increased cost,” Mr Rudd told Fairfax Radio Network.

“We’re conscious of the fact that we’re dealing with hundreds of thousands of workers under, currently, 4,000 separate awards,” he said.

“We therefore have set up the best mechanism through Fair Work Australia, the AIRC and the Fair Work Act to bring that into being, where all these individual circumstances will be worked out through the system over time.”

The promise Mr Rudd stepped back from has the hallmarks of a pledge made by former prime minister John Howard before he came to power in 1995: “Under a Howard government you cannot be worse off, but you can be better off. I give this rock solid guarantee: our policy will not cause a cut in the take-home pay of Australian workers.”

The ACTU says it’s concerned the transitional provisions, designed to help employers cope with the impact of higher wages costs, will exclude workers’ allowances and other job conditions.

ACTU secretary Jeff Lawrence said this meant that many workers would see cuts to their take-home pay.

“These reductions in allowances and changes to job conditions will come into effect from 1 January 2010 and result in immediate losses for workers,” he said.

Workers disadvantaged by the award modernisation process will be able to apply for a take-home pay order, which would be reviewed by Fair Work Australia, the body that will replace the AIRC in January.

But conducting such a review would take time.

The opposition says the Rudd government has clearly broken an election promise and has called for the award modernisation process to be put on hold.

“Clearly it’s a broken promise and it’s creating a great deal of uncertainty for employers and employees who might be dealing with this from the 1st of January next year,” opposition workplace relations spokesman Michael Keenan said.

“Mr Rudd and Ms Gillard need to provide them with this certainty and suspend this process until they can fulfil their longstanding commitment that no one will be worse off under the award modernisation process.”

Appointment of Executive Director to Fair Work Australia

Workers were led to believe—or at least hope—by their unions that “your rights at work” would be restored by electing a Labor government. However, they are beginning to discover, to their shock, that as soon as they try to exercise their basic right to strike, the unions are now enforcing legislation that goes far beyond Howard’s in outlawing virtually all strikes.

* Striking Melbourne Westgate Bridge construction workers were betrayed by their unions amid threats of massive fines and slanderous accusations of thuggery by Deputy Prime Minister Julia Gillard.

* Western Sydney bus drivers who walked off the job to fight new timetables found themselves under immediate attack by the mass media, the industrial courts and their union, which pushed them back to work within six hours.

* Victorian paramedics attempted to fight an enterprise agreement sell-out by their union, only to discover that even resigning from their positions was “unprotected industrial action” that could trigger massive fines.

* University staff who joined “day of action” stoppages on September 16 were instructed by their union not to ask other workers to honour their picket lines, so as not to infringe the Rudd government’s laws.

Now, 34,000 Australia Post workers have been told that they cannot vote on taking industrial action, even after their management stalled negotiations on an enterprise agreement for more than 18 months by refusing to budge on cuts to penalty rates, loss of take home pay, full-time jobs cuts and unsafe work practices.

On September 7, the Rudd government’s new national industrial tribunal—Fair Work Australia (FWA)—cancelled a proposed national ballot of Australia Post workers. It ruled that the Communications Electrical Plumbing Union (CEPU) had not been “genuinely trying to reach agreement” as required by the new Fair Work Australia Act, which came into operation on July 1.

Although FWA has not yet published the reasons for its decision, Australia Post won the case by simply citing a union resolution that said further negotiations with the company would not be productive. The management pointed out that the “good faith bargaining” provisions of the Fair Work Act required parties to meet and attend meetings at reasonable times.

The CEPU response to the FWA ruling typified the role played by the unions. There was not the slightest protest by the union, or any other section of the union movement. Instead, CEPU national president Ed Husic said the union was considering its legal options. Then, without consulting its members, the union presented Australia Post with a revised draft agreement—the details of which workers have not been told—and appealed for immediate negotiations.

The FWA ruling demonstrates the immense legal obstacles that the Labor government, with the full backing of the unions, has erected to prevent workers from exercising their fundamental democratic right to strike. Even after a workplace agreement has expired, workers must apply to FWA for a postal ballot, and the tribunal can easily refuse.

The union leaders all voted at Labor Party and Australian Council of Trade Unions (ACTU) congresses for the “Fair Work” laws. The overriding aim of the laws, to which the unions have subscribed, is to suppress all industrial action and tie workers completely to the profit and productivity requirements of the big business.

Section 3 of the 652-page Fair Work Act states that its object is “to provide a balanced framework for cooperative and productive workplace relations that promote national economic prosperity and social inclusion for all Australians”. Alongside lip service paid to “fairness,” the Act’s criteria are “flexible for businesses, promote productivity and economic growth”.

Industrial action outlawed

Industrial action—which includes partial stoppages, go-slows, overtime bans, work-to-rules and, as the paramedics found, even mass resignations—is banned except during limited bargaining periods for enterprise agreements. This prohibition is not new—it was first introduced under the last Labor government, that of Paul Keating, in 1993.

What is new is that workers cannot take any action, even for the most pressing or long-overdue claims, unless they first prove to FWA that they have participated in “good faith bargaining”. This requirement not only outlaws independent (so-called “wildcat”) action by workers. It bolsters the positions of the unions, which have official FWA status as bargaining agents, and reinforces the role of FWA, which has far-reaching powers to block or halt industrial action.

Among other things, workers or unions must participate in meetings with management, disclose relevant information, give reasons for rejecting management demands and refrain from “capricious or unfair conduct”. Then they must give the employer notice of an application for a postal ballot, usually conducted by the Australian Electoral Commission, a complex process that may take several weeks.

To get a ballot, workers must prove that they are seeking an industrial agreement covering only “permitted matters” relating directly to their employment. They cannot pursue demarcation disputes or rights in a new (“greenfields”) workplace or engage in “pattern bargaining” (“seeking common terms to be included in two or more enterprise agreements”).

Action in solidarity with other workers, or over broader economic, social or political issues, is prohibited. Qantas workers cannot strike over the multi-million dollar salary and retirement packages enjoyed by their bosses, electricity workers cannot fight privatisation and no-one can black ban supplies to the war in Afghanistan. There can be no walkouts against budget cuts, mass sackings or police attacks on workers. It is also unlawful to demand strike pay.

While these matters are not “permitted,” all enterprise agreements must contain an “individual flexibility arrangements” clause. That is, workers cannot strike without also agreeing to adopt a clause designed to deliver employers the kind of “flexibility” they were promised by “Work Choices”—the power to deal with workers individually to scrap basic conditions.

If no agreement is struck, FWA can issue “bargaining orders” to force workers to negotiate further, or it can make binding “workplace determinations”—a form of compulsory arbitration.

Even if a ballot is permitted, and more than half the eligible workers vote, by a margin of more than 50 percent, for specified industrial action, this mandate lasts only for 30 days, unless industrial action actually occurs during that period.

FWA has extensive powers to block or terminate industrial action, either to impose a “cooling off” period or if the action could:

* cause “significant economic harm to the employer”

* “threaten the life, safety, health or welfare” of a part of the population

* “cause significant damage to the Australian economy or part of it”

* do “significant harm to a third party” (for example disrupt supplies or cause economic loss to another company)

These provisions can halt strikes that in any way disrupt production, affect the wider profitability of the Australian corporate elite or inconvenience a member of the public.

If FWA does not intervene quickly enough, the Workplace Relations Minister, currently Julia Gillard, can exercise the same powers via a Ministerial Declaration. She can also direct workers to perform nominated tasks.

Although labelled a tribunal, FWA is more like an industrial court, combining the powers of the Workplace Authority, Australian Industrial Relations Commission and Australian Fair Pay Commission. Breaches of its orders can lead to fines of up to $6,600 for individual workers or $33,000 for unions.

Both the Federal Court and the Federal Magistrates Court can also issue orders and injunctions, breaches of which could see workers jailed for contempt of court. Each court is setting up a specialist Fair Work Division.

These punitive provisions extend to organisations or political parties that advocate industrial action, even if part of a political campaign. It is an offence to “advise, encourage, incite or coerce” or “aid, abet, counsel, procure, induce, conspire” or be “knowingly concerned with” breaches of the Act.

The union bureaucrats have welcomed the fact that the legislation officially re-entrenches their role as industrial policemen over the working class, backed by a partial return to compulsory arbitration, a system that was used in Australia throughout the twentieth century to suppress independent working class struggle.

Union membership has crumbled to 14 percent of private sector employees (down from around 50 percent in the 1970s), primarily because of decades of cooperation with employers and governments in the destruction of the jobs and conditions of their members.

The Fair Work Act, however, specifies that workers who are still union members will automatically be represented by their union, unless they revoke the union’s status as their representative. Unions are also given expanded “entry rights” to visit workplaces to sign up members.

In other recent decisions, FWA has confirmed that employers can by-pass unions and impose agreements directly on workers in non-union workplaces. But many large companies, including Telstra and the banks, have drawn the conclusion that it is more fruitful to utilise the services of the unions.

Hawke and Keating’s legacy

Rudd’s union-enforced laws are the culmination of a protracted process involving mounting attacks by Labor and the unions against the basic democratic rights and social position of workers. During the ACTU’s prices and incomes Accords with the Hawke and Keating governments from 1983 to 1996, the unions actively broke strikes, quashed resistance to punitive fines, removed recalcitrant union delegates and dismantled shop committees.

Like unions around the world, confronted by the globalisation of production, their role was transformed from seeking to extract concessions from employers within the framework of a nationally-regulated economy to one of imposing the demands of employers on their members in order to make Australian corporations “internationally competitive”. The ACTU’s blueprint, titled Australia Reconstructed, was adopted in 1987.

This pro-business agenda required the crushing of all resistance by workers. The record includes the ACTU’s collaboration in the imposition of massive fines and legal costs against the meat workers union in the 1985 Mudginberri abattoir dispute, the 1986 de-registration and smashing of the Builders Labourers Federation, the use of the military to break the 1989 pilots’ strike, the sellout of the 1993 APPM strike and the betrayal of the 1998 waterfront dispute, which resulted in the elimination of hundreds of jobs.

Now, amid a new wave of job destruction, cuts to hours and conditions, casualisation and social spending cuts produced by the greatest global economic breakdown since the 1930s, the Fair Work Act has formalised and cemented the part assigned to the trade union leaderships.

The experiences of the Westgate workers, bus drivers, paramedics, university staff and Australia Post workers have already demonstrated that as workers come into conflict with this “Fair Work” straitjacket—as they inevitably will—they will be confronted immediately with the necessity for not just industrial action but a political struggle against the Labor government and the unions.

The defence of the most elementary rights of the working class for jobs, decent working conditions and living standards now raises the necessity of a rebellion against the Labor and union apparatuses. Such a struggle can only be based on an opposed perspective—the socialist reorganisation of society on the basis of social need not capitalist profit.

By

Mike Head

A peak business group has accused the new workplace regulator Fair Work Australia of overstepping its power, claiming it is allowing unions to “frustrate democratic processes”.

A series of decisions by Fair Work Australia to block or delay votes on workplace agreements, and order companies to meet with unions, prompted the Australian Industry Group to yesterday intervene in a case to argue the regulator could not do this under the new laws.

The AI Group said the issue was relevant to thousands of employers with enterprise agreements under negotiation, and if Fair Work had the power to issue an order whenever unions alleged new “good faith bargaining” provisions had been breached, the system would soon become unworkable.

“Bargaining orders must not be allowed to stop employees exercising their democratic right to approve proposed agreements,” said Australian Industry Group chief executive Heather Ridout.

The AI Group said it would push for the law to be amended if its interpretation of the law was not upheld.

On Monday, Fair Work Australia ordered medical supplies company Defries Australia to stop a ballot of mostly female and migrant staff scheduled for the next day and to instead schedule four meetings with the National Union of Workers over a fortnight. A similar order was made for the Queensland Tertiary Admissions Centre to delay a ballot and meet with the Australian Municipal, Administrative, Clerical and Services Union.

National Union of Workers Victorian Secretary Antony Thow said Fair Work Australia was doing what it needed to do. “Those orders were vital because the company weren’t conducting themselves with any good faith. They had two meetings of 25 minutes of no substance. The company did not want to bargain collectively with the union. It is the exact circumstance where good faith orders are needed,” Mr Thow said.

The union had around 40 per cent membership at Defries, he said, and a deal was put to workers by the company to cut overtime rates and Saturday penalties without sufficient time for the union to respond. “They have just paid lip service to good faith bargaining,” he said.

Last week Fair Work Australia stopped a vote by Abigroup staff on a collective agreement after an application by the CFMEU. The AI Group made its submissions yesterday in a hearing on this case.

Mrs Ridout said: “The Act gives very substantial rights and protections to employees to ensure that they are able to make an informed decision about whether they genuinely agree to a proposed agreement. Unions also have substantial rights but they should not be permitted to obtain a bargaining order to frustrate the rights of employers and employees to enter into agreements of their choosing.”