Chapter 4: Comatose — Corporate unionism

When enterprise bargaining was introduced many unionists thought that EBA negotiations offered improvements for workers. Many still say that today. But is this an illusion? Was it only an improvement for the insiders in the Industrial Relations club? Or were there real advances for workers? Did wage parity go out the door and some workers get ten times greater increases than others, as claimed by the ABC TV News on 29 August 2005?

Labor Prime Minister, Keating, said in 1993 that Labor wanted a model of industrial relations that:

"... places primary emphasis on bargaining at the workplace level within a framework of minimum standards provided by arbitral tribunals…

Over time the safety net would inevitably become simpler. We would have fewer awards with fewer clauses…

For most employees and most businesses, wages and conditions of work would be determined by agreements worked out by the employer, the employee and their union.”1

According to Keating, enterprise bargaining introduced by Labor was collective bargaining at the enterprise level. Under this system moderate wage increases could be negotiated in return for increased productivity by workers thus protecting profit margins in the case of the private sector and placing a restraint on government budgets in the case of the public sector.

Under the Workplace Relations Act 1996 and its amending WorkChoices legislation enterprise bargaining provides for three main types of agreement:

  1. Non-union enterprise agreements.
  2. Union-negotiated enterprise agreements.
  3. Individual Workplace Relations Agreements (AWAs).

However the industrial realities for workers in Australia mean that workers' wages are set by:

  1. Registered collective agreement (38.1%);
  2. Unregistered individual arrangement (31.7%); and,
  3. Awards only (19.0%).
  4. Registered individual agreements [Australian Workplace Agreements (AWAs) (3.1%)
  5. Unregistered collective agreement (3.0%).

The remaining 5.1% of employees were working proprietors of incorporated businesses.2

Enterprise Bargaining

Of those workers whose wages and conditions are regulated, union collective agreements are the most widespread form of that regulation. These enterprise bargaining agreements (EBAs) were previously certified by the Industrial Relations Commission and included a 'no disadvantage test'.

Under this process, average federal award wages fell behind enterprise bargaining wages by 30%.3

Under the new federal system the agreement does not have to pass a 'no disadvantage test' so minimum conditions under the award can be eroded.4 Awards no longer provide the minimum standard; this is set by the so called Fair Pay Commission under direction from government. The Fair Pay Commission rubber stamps all enterprise agreements without the certification process. Weak and unorganised workers lose under these arrangements.

Enterprise bargaining agreements (EBAs) are for varying periods – two-year or three-year agreements are common – and have a nominal expiry date. They are re-negotiated, sometimes after that expiry date. Under the system in place prior to 2006 changes to the old conditions remain until new conditions are negotiated and certified in a new agreement. This provides an incentive for unions to sign the agreement so that any improved condition (e.g. increase in wages) can flow through to workers.

Generally speaking those workers who had their wages regulated in the 1990s under certified enterprise bargaining received wage increases that kept pace with the Consumer Price Index (CPI). The EBA cycle dominated trade union thinking and negotiation, even though many workers' wages and conditions were set outside this system without union involvement. Within the EBA system, wage increases were tied to an increase in productivity. Workers had to work harder and longer for the same real wages. The employers knew that if they did not provide the CPI increase the unions would be forced to call on their members for industrial action. And the unions knew that if they went for more, the employers would use the Workplace Relations Act against them, resulting in large fines for 'unprotected' industrial action.

A stalemate had been reached.

Enterprise bargaining has undergone a number of cycles under the current Federal Coalition Government. From a low base in the late 1980s under the previous Labor government, formal enterprise agreements were estimated to have covered more than 2.5 million workers by late 1996, which represented somewhere around 36 per cent of all Australian employees.5

A cottage industry formed around this process. It is often referred to as 'the IR club' and comprises union officials, human resource managers, solicitors and barristers, public servants in the industrial commissions (states and federal). The participants share one thing in common: they work outside the workplaces whose conditions they determine, i.e. ordinary workers are not included in the IR club. Greg Combet, the current secretary of the ACTU, is one example of the IR club. He graduated from University as a mining engineer. On the ABC program 'In the National Interest' Greg Combet had this to say about his union education:

"... was studying mining engineering in Sydney, I'm a Sydney boy, and I started work in coal mines out west of Sydney at a place called Lithgow, and started as a coalminer out there to do my time, and I was 18. I worked in underground coalmines, and I joined the Miners' Federation at the time, that's the name of the coalminers' union; it's now part of the CFMEU, and that was the beginning of my union education, and left a tremendously important impression on me, and really I've been a union person ever since. I learnt first-hand how important it was to stick together in a fairly difficult working environment then."6

When Greg Combet became an industrial officer of the Maritime Union of Australia (MUA) he had never worked on the wharves either as a wharfie or a clerical worker. Before the 1998 MUA dispute he was promoted to ACTU secretary. His life as a rank-and-file worker was confined to those short stints he did in the mines in Lithgow while a University student. So his direct experience as a worker was limited to that experience. In short he was appointed by officials grooming someone with a University education to become ACTU leader.

ACTU secretary Greg Combet was questioned on ABC news (the national broadcaster) about the current Australian Government's intention to alter the industrial relations system.

He replied: 'The Government should know that it will face workers at the next election.'

Industrial struggle has now become subordinate to the parliament, at least in the minds of some. In the 1998 MUA dispute, ACTU Assistant Secretary Combet and MUA national secretary Coombs were the architects of the industrial strategy.7 Their aim was to reduce industrial action to a minimum.

After the 1998 MUA dispute was over, with the redundancies handed out, and conditions traded away, the effects flowed on. The total number of working days lost across Australia due to industrial disputation reached almost all-time lows. For example in January 1999 just after the MUA dispute the number of working days lost was the lowest since January 1994. In the same month, the number of employees involved in industrial disputes was the lowest since such data was first compiled on a monthly basis in 1969.8 Under fire from the employer class, a small target strategy was adopted by the union movement.

John Coombs said this about Combet when he gave the running of the 1998 MUA over to the ACTU assistant secretary:

“I was never a brilliant scholar, and I recognised that Greg’s done a degree at university; he could handle himself on his feet, he was very smart and he had a wonderful capacity to relate to workers,”9

Combet may have learnt from his brief experience in the mines but he had little experience as a rank-and-file worker and these workers did not elect him to lead. How does this qualify a person for leadership of workers in the union movement?

In the world of corporate unionism, the 'selection criteria' for leadership of unions would include:

  • the ability to speak and make press releases to mainstream monopoly media; and,
  • to act as legal advocate in the industrial relations courts.

A cynical interpretation is that such a leader would to be a master of spin to all and sundry including union members.

John Coombs again on the MUA dispute:

“I was confronted with the undeniable truth that I would have lost all those jobs if I didn’t agree (to the deal where half the wharfies were made redundant and the union lost its closed shop on the waterfront)– and the union to boot,” says Coombs. “We would have lost everything. And to carry that record to my grave, well, it was not something I was prepared to do. I followed great union leaders like (Jim) Healy, (Charlie) Fitzgibbon, Norm Docker and Tas Bull. No way was I going to go down as the bloke who lost the union. It needed all the soul we could muster to save it.”10

Coombs, the unionist from the rank-and-file, felt no longer able to represent workers on his own. He needed professionals. He had passed the test of corporate unionism by agreeing to the deal Combet had struck.

***

The ALP 2007 IR policy document, Forward with Fairness, defines enterprise bargaining in this way:

"Collective bargaining will be based on bargaining at the level of an enterprise. The well understood definition of 'enterprise' will continue and may include a single business or employer, a group of related businesses operating as a single business or a discrete undertaking, site or project. For example, this means a collective enterprise agreement can be made for employees at a warehouse, a chain of shops, a manufacturing plant or a major construction project."11

We would like to address three examples from three different industries to show the effect that enterprise bargaining has had on union solidarity.

As well as taking up a lot of union officials' time we believe that enterprise bargaining has diminished the unionism that existed in the 1950s and 1960s and weakened the kind of unionism we advocate in this book.

The first example is from the public sector, the second from the building industry and the third from the manufacturing industry. It is the story of how three unions, the Commonwealth Public Sector Union, the Builders Labourers Federation and the Australian Manufacturing Workers Union dealt with Enterprise Bargaining during the period of the 1990s and into the early 2000s.

1. Enterprise bargaining in the public sector – bureaucratic unionism

Enterprise (or agency) bargaining helped restrict mass mobilisation of public servants over the issue of disbanding the Commonwealth Employment Service (CES) in 1997. When mass meetings were called in Brisbane, CPSU officials attempted to limit the calls for action and treated the privatisation of the CES as a problem confined to one department rather than a threat to the entire public sector. In the CPSU in Queensland a rank-and-file group resisted this approach and managed to overturn the national executive recommendations and pass a motion for industrial action against the privatisation of the Commonwealth Employment Agency.

The state secretary of the Community and Public Sector Union and later ALP senator (Claire Moore) unsuccessfully tried to persuade the large mass meeting in the Brisbane City Hall auditorium to support the national recommendation. The state secretary was defeated on the floor of the meeting by a vote in favour of public sector wide industrial action – an unusual result from public servants who generally preferred to support their officials because the rank-and-file was poorly organised. But not on that day.

Nonetheless, after that meeting the CPSU was successful in undermining these calls by negotiating redundancy payments for the affected CES staff thus blunting the calls for broader opposition. The CPSU lay down the gauntlet to the radicals; as if to say, you see, not even the CES workers copping the brunt of the privatisation will fight. The CPSU returned to its station in life, managing the relationship they had with management, negotiating, signing on to successive enterprise agreements. And if the CPSU could not buy off the activist opposition by offering them positions in the union, some CPSU officials and members would go around spreading lies about activists even to the point of advocating their sacking from the public service.

In the words of one rank-and-file activist:

"that period (trying to fight the destruction of the CES) was a real turning point for the CPSU. In retrospect it was the point of no return. The CPSU leadership shut down mass meetings after we rolled the national recommendation. We have never had a mass meeting since."

Thus, without unity through mass action across the public service, mobilised by all branches of the CPSU, all jobs were lost in the CES, and subsequently many in other agencies: Telstra, Department of Social Security and the Australian Taxation office.

The CPSU officials thus secured the role they said that they opposed but secretly cherished. They received a place at the table even if it meant managing the change to a privatised Job Network Scheme. The national executive of the union was given input into the new Public Service Act which was used to weed out any critical views through the use of the APS code of conduct.

Across the public service, moderate options were tempting for the CPSU officials and members because a radical alternative was hard.

CPSU members are isolated in agencies, some of them quite small. Although some are on good wages and conditions they are isolated from the rest. Those on good conditions are immunised from inequality elsewhere in the public sector where workers face aggressive bosses, mind-numbing work and job uncertainty. An increasing number are casuals or temporaries (non-ongoing employees [NOGs]).

The isolation is increased by the way the CPSU operates. Officials and organisers operate as a unit or branch of the CPSU in separate agencies rather than public sector wide. The CPSU has become corporatised to reflect the departments (the enterprise) where their members are. There is little public sector wide union culture as there was when union members socialised across departments on picnic days or even in a central pub.

As a result the CPSU's main job is perceived as fixing members problems in each separate agency or department. So, if there were a struggle going on in call centres in Telstra or Centrelink, members from other agencies may not even know about it and, if they did, it would be even less likely that the CPSU would call upon them to take industrial action on behalf of the call centre workers in the other department. Of course there would always be excuses offered if someone had the temerity to raise such a secondary boycott, usually along the lines that members would not be prepared to stick their necks out. So when Telstra foreshadowed 12,000 cuts on the eve of the introduction of the WorkChoices legislation scarcely a whimper was heard from the CPSU about industrial action.

Business as usual, organisers negotiating individual contracts on behalf of members.

Under the new Workplace Relations Act management was forever threatening (actually with mixed success) to go directly to the workforce and sign staff up to non-union agreements, thus making the union irrelevant.

Soon there were so many temporary employees who were not union members that for a while management could secure a 'yes' vote on their agency agreements regardless of there being union agreements (because the non-union workers could vote down conditions the union wanted in pursuit of perceived self interest). All management needed to do was offer a CPI increase in wages linked to productivity and a workforce without job security would surrender other conditions won in the decades before.

As each new enterprise agreement was negotiated this fear was exploited by the CPSU officials and used against the few union members who wished to challenge enterprise bargaining by bargaining collectively across the public sector. Management employed more non-ongoing employees and new staff were employed under AWAs. In the end the CPSU abandoned collective agreements by assisting workers to negotiate AWAs. The CPSU as a union of workers had ceased to have any relevance, demonstrated by a dwindling membership density.

2. Enterprise bargaining in the building industry – lack of solidarity

The union signed up yard workers of a multinational scaffolding company engaged in large construction projects for public infrastructure. In 2000, the union negotiated with the scaffolding company for an enterprise bargaining agreement (EBA) favourable to workers. Some time after this agreement was signed a lorry driver who made frequent deliveries to the scaffolding company's premises, engaged the workers employed there in conversation. The following account is based on those discussions which occurred over a period of weeks.

The EBA was negotiated because the scaffolding company was supplying equipment to a high-rise project being built by an international developer.

Organisers from the union met with the scaffolding company’s managers and presented them with an ultimatum: agree to the conditions for members or your equipment won’t be unloaded at construction site by the union members there. The conditions won were $200 a week more than a lorry driver earns for taking equipment to the site plus $20 a day travelling allowance, effectively another $100 per week extra; sick leave, worker’s compensation and a funeral scheme unheard of by other workers.

However, of the original team signed up by the union, only one remained and new workers refused to join the union. The fact the union won conditions for the new workers did not entice them into joining the union. The rest had left because of high turnover with workers seeking better jobs elsewhere.

"The moral here is that if the union does not attempt to raise the class consciousness of its members its efforts will be lost"– lorry driver.

The conditions differed for the lorry driver. In his yard, truck drivers received wage rises through the annual ‘living wage’ adjustment negotiated at that time in the Australian Industrial Relations Commission (AIRC) by the Australian Council of Trade Unions (ACTU).12

Every year this lorry driver waited for three or four weeks after the rise had been awarded and then asked his workmates ‘have you noticed a few extra dollars in your pay packet recently?' Invariably the answer was ‘no’. Again, the fact that the union movement was working to improve their lives was lost on his workmates. The lorry driver described the dispute at the scaffolding company in the following terms:

"I had to go to the scaffolding company's premises and was able to engage in conversation the one remaining member of the original group signed up by the union. I questioned him over the union's activities later subject to investigation by the Cole Royal Commission.

The information I discovered from this man tallied with what an ex-manager told the Royal Commission.

The worker said that initially the union did not approach the men themselves. Rather, a truck carrying the scaffolding company's equipment arrived at the construction site, and the union insisted it come from a union workplace or it wouldn't be unloaded. The company attempted at first to persuade the workers to join another union but soon realised that this wouldn't facilitate the unloading of their gear. They had agreed to pay the men's union dues but then withdrew this offer and told their workers to join the union.

That done, union organisers presented the company with an EBA and told them to sign up or the trouble would continue. Deal done. Interestingly, the worker who told me this story was aware that the union organisers could face serious trouble from the Cole Royal Commission investigation.

However, he indicated he felt no especial responsibility toward the union. When I asked him if he had ever encouraged the new workers (non-members) to join up he said 'why would they, they have their EBA.'

When I pointed out that the EBA was thanks to the union he shrugged and said 'that means nothing to them'. He informed me that under the terms of the union agreement they had a wage increase to $20.80 per hour for the men and $22.80 an hour for him (as foreman); the travelling allowance had risen by $4 to $24 a day, they got 24-hour worker's compensation cover no matter where they were, a paid rostered day off each month, accumulating sick leave, and funeral benefits. In short, conditions completely out of kilter from what similar workers had. They felt no responsibility to the organiser who secured this deal for them.

This worker seemed to me uncomfortable with the deal they had and the way in which it was done, that is, without any effort on their part and without any real contact with the union then or since. He was aware that the matter of the travelling allowance paid to men doing storeman's work was a point of contention with the company and agreed, although with a cheeky grin, that it's a bit of a rort.

It seems to me that there is a fundamental problem here for the union movement.

Obviously, unions which still have plenty of clout can achieve conditions for their members which, really, are not excessive but are out of proportion with what other workers can secure. Employers who have to provide wages and conditions which other employers, their competitors, don't have to offer employees doing the same work feel resentful and that they are being ripped off.

The reason for this situation? The secondary boycott provisions. Where once the stronger unions could impose more or less uniform conditions across the entire workforce, we are now fractured and divided.

Now, the strong prosper while the weak are left on the minimum wage, if that.

Is this not the fundamental problem we have? And is it not clear that this situation was exacerbated by the Hawke-Keating years? There was a news report in the AUSTRALIAN under the heading, (which is revealing in itself): 'IR reforms playing into the hands of Labor says Keating' Keating said this: '...the enterprise bargaining system Labor introduced in 1993 allowed for the first time a rise in real wages based on productivity and profits without fuelling inflation. There was no hopscotch quality to wage rises any more…' By 'no hopscotch' Keating means the gains achieved by the strong didn't flow on to the weak. He went on to say: '... this means the labour market is no longer in need of fundamental reform, and having reformed it, I stake those claims on the outcome – moderate wage rises when the economy was growing.'

That's where we're at, caught between two political parties who have no hesitation in using the power of the state to ensure that workers get no more than a minimal share of the nation's prosperity and then only those still with the power to bludgeon it out of employers like the scaffolding company (name deleted).

These actions by union organisers on behalf of their members resulted in the following findings against them by the Cole Royal Commission:

"Freedom of Association On 19 May 2000 the (name deleted) site, (name deleted), a union organiser, delayed the unloading of a truck owned by (name deleted) scaffolding company because the scaffolding company's storemen and employees were not members of the union.

In doing so, (name deleted) breached the freedom of association provisions of the IR Act. Section 122 of the IR Act has the effect that these actions are taken to be actions of the union, meaning that the union acted unlawfully.

Coercion. A union organiser, threatened the scaffolding company with industrial action if it did not sign an agreement with the union acted unlawfully by breaching s. 185 of the (name deleted) IR Act 1999, which prohibits threatening or taking industrial action to force an employer to sign an agreement."13

This is not an isolated account of what is happening in our unions. It is a widespread practice for unions to operate in this way, with little increase in class consciousness by the workers involved.

3. Resistance to enterprise bargaining – two different responses in one union.

Before we discuss the resistance put up by Workers First let us analyse a third example of enterprise bargaining by the Australian Manufacturing Workers Union (AMWU).

A certified agreement (CA) was signed by the AMWU and Austral Bricks Pty Ltd in 2003. The CA is read in conjunction with the State Engineering award. The CA overrides the award where there is any conflict or inconsistency between the two. The object of the CA is outlined at Clause 10 as being to promote the efficiency and performance of the company.

The CA includes a standard clause stating no further claims by the union (or management) could be made before the next EBA round in 2006.

One question we ask is how can anyone know there won't be new claims coming from the union membership during the period of the CA? Are there ways around it? We suppose one answer to that is the Workers First group who in Victoria ignored such clauses.

Presumably the 'no claims' clause in an EBA is legally enforceable against the union. On the other hand Corrigan proved in the Patricks dispute that employment contracts are not legally enforceable by the union against the employer. This was because Corrigan rearranged the Patricks companies so that the wharfies were employed by a shell company with no assets.

Clause 12 of the Austral Bricks CA deals with hours of work. It is deficient in that it does not specifically exclude weekend work. If the award does not exclude weekend work then it becomes possible for Austral Bricks to make workers do part of their 38 hours during weekends.

There is a clause in the CA that excludes AWAs at Austral bricks (i.e. all workers are subject to the CA between the union and Austral). If the employer decides to employ people on contracts, how will the union legally enforce the clause prohibiting such individual agreements?

One of the chief aims of the Austral Bricks Certified Agreement was to avoid strikes. This was done through a fairly standard disputes clause. The union agrees to go through five steps to solve a dispute. The five steps are that the union delegate on the job must first raise the dispute with the relevant supervisor, then with the relevant manager. Following that if there is no resolution there will be a phone hook up between a union official and the relevant manager and then with the state secretary of the union and finally the union must then go to the Qld IRC. Of course there is no provision to go on strike in the EBA. All these steps are open to manipulation by management. One ploy is to change the relevant supervisor or manager in order to frustrate attempts to get the IRC to rule on the dispute. Management then argues in the industrial relations commission (IRC) the union has not taken the correct step in the process and challenges the jurisdiction of the IRC to rule on the dispute.14

Pattern Bargaining

Pattern bargaining broke enterprise-by-enterprise agreement making. Pattern Bargaining means negotiating across a range of enterprises or public sector agencies for 'above-the-award' pay and conditions. It is not enterprise bargaining. The EBA negotiations are across an industry or industries. Each EBA contains the same demands and may be set to expire at the same time. This creates unity of purpose and gives unions greater bargaining power. It gives the union a base across industries which permits it to have a strategic impact on the behaviour of employers.

The ALP conference in May 2007 endorsed pattern bargaining in the following terms:

"Where more than one employer and their employees or unions with coverage in the workplaces voluntarily agree to collectively bargain together for a single agreement they will be free to do so."15

It was the AMWU, ETU, CFMEU and other unions in Victoria under the leadership of Workers First that applied this method to some effect. They were supported by some of the Victorian leadership of the CFMEU, the ETU, the Textile Clothing and Footwear Union (TCFU) and the BLF in that state; thus managing to extract better wages and conditions from the large construction and manufacturing firms in Melbourne. The TCFU set up its own group called Workers Strength.

Both state and Federal Governments railed against this 'distortion' of enterprise bargaining because it favoured the workers. The employers formed an association called 'Employers First' to counteract it. In the wash-up the Federal Government set up the Cole Royal Commission (2001-2003) to curb the new union tactics and bring charges against the union's leaders.

The ALP state government in Victoria used the criminal law to jail the one advocate of Workers First, the former Victorian state secretary of the AMWU, Craig Johnston. The federal branch of this union led by the ALP's Doug Cameron, supported his jailing and banned him from the union.

Workers First threatened the status quo between employer and union under Enterprise Bargaining.

The Workplace Relations Act 1996, its WorkChoices 2006 amendments, and the Secondary Boycott legislation introduced by the Fraser Government in 1976 are the equivalent of those ancient penal powers fought against by the workers' movement in the 1950s and 1960s.16 Previously, militant unions prepared to fight for collective bargaining in preference to arbitration and conciliation courts that they distrusted. The union movement had come full circle. On this occasion it has accepted the new industrial environment while Johnston languished in jail.

The question must be asked: when are they going to deliver the prosperity for all? Will the 'trickle down' effect ever occur? Even in this period of dominance over workers the capitalists still seek more. Free trade is still restricted by workers' rights, they tell us. Many will not be happy until they return to the day when workers line up at the gate each day to be chosen for work. Economic rationalists to-day, like their predecessors of the 1830s who convicted and transported the Tolpuddle Martyrs, regard trade unionism as nothing more than a conspiracy to subvert free trade. Workers combining to advance their interests as a collective is anathema to the economic rationalists. They see trade unions as an impediment to cheaper labour. Trade unions promote ideas of class consciousness which undermine the efforts of the owners to get workers to identify with the profit motive of the firm rather than their collective well-being. Economic rationalists accept trade unionism, but only as a social club for workers to join, not to represent the legitimate aspirations of their members.

In the midst of this, a strange contradiction has emerged. There are owners of firms and governments that see productivity is greatly enhanced by a disciplined labour force, and unionism provides a framework for discipline, through social cohesion. Some see these owners and their managers as good employers who enter into agreements with unions. The history of Australian political struggle has been dominated by the driving mission of the Labor Party to force or to encourage the employer to be the good boss, to reward a fair day’s work with a fair day’s pay.

While many Australian workers accept this as the only practical way to advance their interests, there are others who do not believe that the capitalist system can ever fully serve the interests of the working class. They know that, more than ever, workers’ fortunes are tied to markets; more than ever, workers are objects buffeted and destroyed by market forces. They have organised in various political organisations.

The MUA leadership saw the stevedore Sea-Land as being a good boss. In the words of John Coombs, the national secretary of the MUA during the Patrick dispute:

"At Sea-Land the labour are recognised as human beings. Management listens to its workers, shares information with them, favours co-operation to the military style confrontation that has been the hallmark of Patrick management."17

Social Democrats have always advocated a partnership in capitalism. Economic rationalists have tried and continue to attempt the abolition of the arbitration system. If they are successful, that may be the end of the Labor Party that introduced arbitration between union and employer.

However the end of arbitration does not mean the end of unions because the contradictions that brought employer and worker in conflict are still there, perhaps even sharper than ever before. It was these contradictions that brought the need for workers to organise unions, long before they were legalised. Look at the union struggles in South Korea in the period 1995-2005. Many unions operated illegally, their leaders were in hiding, yet they were well organised and capable of strong action in support of their members. The BLF was de-registered by the Hawke Labor government but went on to be stronger than before, winning many above-the-award gains for its members.

Australian Workplace Agreements (AWAs)

Under the Workplace Relations Act registered individual agreements were called Australian Workplace Agreements. Yet by 2005 they still only accounted for between two and three percent of all employees under awards or union agreements. Many private sector employers set wages through unsigned unregistered agreements18 (38.5% of workers) or compliant enterprise agreements (24.2% of workers) rather than going to the expense of having individual agreements (AWAs). While far fewer unsigned unregistered agreements exist in the public sector there are an increasing number of AWAs.

These are individual agreements negotiated between employers and individual workers. In the same way that Enterprise Bargaining Agreements are based on the platform of previously negotiated awards, Australian Workplace Agreements are based on awards or on enterprise bargaining agreements that replaced the awards.

In October 2005 AWAs represented only 2.5% of all agreements despite having been introduced by the 1996 Workplace Relations Act.

As mentioned above, awards were not indexed to changes made under subsequent enterprise bargaining agreements. So AWAs based on awards can be inferior to enterprise bargaining agreements. This was the case under a Clerical Award where clerks employed by labour hire firms like Select Australia (a Dutch firm) are paid less and work longer hours than public servants employed by the Queensland government under enterprise agreements. However this is not always the case. For example in the Commonwealth Department of Employment and Workplace Relations the benchmark for the AWAs was certified agreements signed by the CPSU. The better the certified agreement, the better the AWA. Hence by July 2005 53% of non-management staff in DEWR had negotiated AWAs. One public sector worker had this to say about AWAs:

"This is a subtle demon we are dealing with here! The problem is that the CA (certified agreement) forms the benchmark for AWA wage discussions and it is vitally important for all staff that good CA outcomes are achieved, regardless of whether people are actually covered by the CA or not. It is also important to know what we are losing in signing away superior CA conditions… To give you a idea of the kind of outcomes under AWAs for a fairly unexceptional … officer (DEWR worker) like me, I asked for and got an 11% base salary rise when I went on the AWA and got a $4,100 bonus for the seven months of that financial year that it covered me. One year after signing (salary can be reviewed on application any time and must be each year), I asked for and got a further 5% base salary increase and have just received a $6,500 bonus."

This particular public servant gave up on the collective agreement and was able to sign up to a higher wage. However public sector workers with traditionally higher union membership have higher wage levels. Public sector workers often have marketable skills (university degrees) that are in demand by government so they have some leverage with their managers, an advantage not enjoyed by many other workers.

Contrast the outcome for the public sector worker above with what has happened in South Australia and Victoria in 2005, when a plastics manufacturer, Kemalex, made workers on the assembly line sign AWAs. Under the terms of the AWA the Kemalex workers were required to apply for their own Australian Business Number (ABN).

Under the ABN legislation each worker at Kemalex is a registered business. This means the employer escapes from the legal responsibility for deducting tax, paying long service leave, holidays and sick leave, employer funded superannuation and workers compensation. The workers have to cover all these contingencies themselves. To Kemalex, it mattered little that these individual workplace agreements were a sham and challenged even the legal meaning of employee.

Using the threat of redundancy, Kemalex revoked the union enterprise bargaining agreement and signed up its process workers to individual contracts. The Kemalex workers were paid $17 per hour as individual contractors. This means that they received an extra $4.30 an hour in exchange for losing all the conditions mentioned above. This was no compensation at all and the workers and union opposed it by strike action and picketing.

Large mining companies in Western Australia achieved similar results in the Pilbara undermining efforts by the Australian Workers Union and the CFMEU to have union negotiated enterprise agreements.

Conclusion

In the 1990s, with workers on the defensive, capitalists were given a dream run. Unions had become mere facilitators of enterprise bargaining and individual work contracts.

For the most part, unions accepted the enterprise bargaining model and the economic rationalist program that prompted it. Enterprise bargaining which is round table agreement with the employer is a stark contrast to bargaining by strong unions across enterprises and industries outside the arbitration system.

Such bargaining is the direct confrontation with individual employers by workers and their union representatives where the union sets the conditions demanded by its members. It relies on the industrial strength of the union, not co-operation with employers who hold most of the cards in the arbitration system. Enterprise bargaining is a restraint on collective bargaining because it restricts bargaining to a single workplace.

Enterprise bargaining has weakened unions. Yet, in some industries, where unions are strong, collective bargaining has still been possible across enterprises i.e. in parts of the building industry.

These days, most trade union officials seek success in the legal process. It has become the leading edge of union struggle. They rely on arbitration and conciliation and laws enacted by Labor governments. Often the debate centres around whether an action by workers is lawful or unlawful rather than on the right to organise to improve worker conditions. There was a time when the lawfulness of industrial action was not in question because nearly all union struggle was unlawful. Legality brought a contradiction in that many union actions have become unlawful again. It is not just the IR lawyers the unions will be talking to but the criminal lawyers. But the lawyers present another contradiction. Their presence takes power from the worker.

  • 1. Sydney Morning Herald Work in progress Friday, 27 May 2005
  • 2. Australian Bureau of Statistics No. 6306.0 – Employee Earnings and Hours, Australia, May 2006
  • 3. Awards, Minimum Standards and Bargaining after WorkChoices presented at Workers or Slaves: Strategies of Resistance against WorkChoices, Brisbane Labour History Conference 25 February 2006.
  • 4. Australia has a hybrid industrial relations system with awards as the platform with certified agreements specifying conditions as part of enterprise bargaining.
  • 5. Enterprise Bargaining Under Labor, National Institute of Labour Studies Inc, Flinders University of South Australia.
  • 6. ABC Radio National on The National Interest – 15 April 2001 – Unions; Australia’s trade @ http://www.abc.net.au/rn/nationalinterest/stories/2001/280162.htm
  • 7. Combet, formerly a senior industrial officer of the MUA, was elected ACTU Assistant Secretary in 1996.
  • 8. Industrial Disputes (6321.0) Australian Bureau of Statistics January 1999.
  • 9. Playing John Coombs by Drew Warne-Smith The Weekend Australian April 30, 2007
  • 10. em>Playing John Coombs Op. Cit.
  • 11. See http://www.alp.org.au/media/0407/msirloo280.php (checked 21 May 2007).
  • 12. The Fair Pay Commission took over this function in 2006 from the AIRC under WorkChoices.
  • 13. These finding are from the Cole Royal Commission into Building and Construction Industry. Details from this reference have been deleted to protect union organisers involved.
  • 14. This tactic was used by the employer in the case in the AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170LW application for settlement of dispute by Ian Curr and the Australian Taxation Office. The employer was able to defer the dispute resolution procedure for five months until it had sacked the union member with the dispute before the Commission.
  • 15. Forward with Fairness — Labor’s plan for fairer and more productive Australian workplaces at page 13.
  • 16. S45D & E of the Trade Practices Act (the secondary boycott legislation) has been used against the Transport Workers Union and two rank-and-file members of the same union have faced Federal Court action under the Workplace Relations Act. (B. Dowling in Big Rigs published by Queensland Times on 1 May 1998)
  • 17. Address by MUA National secretary John Coombs Australian Institute of Management 1998 Annual Conference (16 October 1998): Getting it Right: Changing the Rules of Management Managing Their Way.
  • 18. Unregistered Agreements may or may not exist on paper, i.e. they may be verbal; when they do exist on paper they remain unregistered.