The gap between work and choices

When the government launched a $55 million advertising campaign, "WorkChoices" was created as a single symbol. Yet the gap between work and choices, embedded subtly in the legislation's title (the "Work Choices" Amendment Act) is experienced starkly by many employees.

Government spin has not been enough to turn around public opinion. The polls show that WorkChoices remains deeply unpopular with voters. The policy is opposed by a margin of two or three to one. Among voters who believe industrial relations is the most important election issue, the margin is four to one against the government.

The government fell seriously behind Labor when WorkChoices was debated in Parliament, and was - in trend terms - behind in all three major polls through most of 2006, from the time WorkChoices took effect. WorkChoices represents a clear and present danger to the re-election of the government.

In Sydney, within days of WorkChoices taking effect, Amber Oswald, a 16-year-old casual working in a juice bar, was put on to an AWA that cut her weekly pay from $97 to $65. Her boss told the media: “If they don’t want to sign, they can leave … It’s not about what’s fair, it’s [about] what’s right - right for the company.”

Amber was able to challenge it through her union because the AWA had not been offered properly - she had not actually seen it before she was put on it. But after winning her case for back pay, she was taken off her Sunday shift which had attracted double-time rates. One day, a few months later, she was told not to come in the next day because the store was closed - for “rebranding”.

Therein lies the problem for many casual workers. In theory, workers are still protected from “unlawful termination” if they are sacked for refusing to sign an AWA. It is expensive - a case will cost upwards of $30,000 to run through the federal court - so if you are not wealthy or in a union, it is at best a threat. But for casuals, if you do not sign you can just find that your rosters are changed, your hours are cut back until it is barely worth coming in to work any more.

At retailer Spotlight, new employees were offered AWAs that abolished penalty rates, overtime rates, rest breaks, incentive-based payments and bonuses, annual leave loading and public holidays. For those who worked Thursday nights and Saturdays, this would cost $90 a week. In return, they received an increase in their base hourly rate of pay of two cents an hour. That was OK, said Spotlight management. Because that is just “the starting point … Our store managers negotiate the rates with the staff depending on the skill of the person and market forces.” But if the starting point for “negotiations” is $90 a week less, then most workers are going to be hard pressed to get near what they would have been automatically entitled to under the old system.

WorkChoices is not about increasing productivity or prosperity; rather, it is about increasing the power of those who already have the most power and resources, and in doing so taking power away from those who have the least, and from those who would challenge the power of the mighty.

The greatest power rests with those who own and control the most resources. They use those resources to generate profit and more resources and power. In order to do so, they typically organise themselves into a collective of capital known as a corporation. This collective form has all sorts of benefits, including the granting of the status of an “artificial person”, and the granting of limited liability. Workers respond to the power of capital by organising collectively into unions, as the power of an individual employee bargaining with a corporation is minimal, but the power of employees bargaining together is potentially quite substantial.

WorkChoices seeks to undercut this challenge to the power of corporations, by removing many of the protections that workers previously had as a result of the pressure exerted collectively by workers for over a century, lowering the starting point for negotiations (if negotiations occur), and making it very difficult - and sometimes illegal - for workers to bargain collectively. It seeks, in effect, to re-establish the great divide between the strong and the weak.

One mechanism for this is the targeting of trade unions. In no other Western democracy can a union be fined for seeking similar outcomes in different agreements (“pattern bargaining”), or for including in a collective agreement provisions that protect against unfair dismissal. In no other Western country can a worker be jailed for six months for refusing to answer questions asked by government inquisitors about what happened at a union meeting where such seditious matters as pattern bargaining or union security provisions were discussed.

As of June 30, 2006, 29 people had secretly been questioned under threat of jail if they refused to submit or told anyone about what happened in the interrogation room. Some were denied the right to be represented by the lawyer of their choice.

The secondary target of WorkChoices is the independent industrial tribunals. Their powers have mostly been enfeebled or given to partisan government agencies or private contractors. The federal tribunal is left mainly with responsibility for administering the anti-strike laws targeted at unions.

And then there is another, unexpected target: the companies who refuse to play ball with the government, who wish instead to maintain constructive, co-operative relations with a unionised workforce. For many companies, this is the most sensible way to make a profit.

In no other Western democracy does the government micro-manage consenting relations between employees and employers to such a degree, fining employers for making agreements that allow union officials onto their own workplace or permit union-provided training. While decrying the “paternalistic influence of ... third parties”, the minister, at the stroke of a pen, declares provisions in collective agreements “prohibited content” and makes the users of such provisions potentially liable to large fines.

It is, as the president of the conservative H.R. Nicholls Society says, the “old Soviet system of command and control, where every economic decision has to go back to some central authority and get ticked off”.

To get a small sense of the partisan nature of WorkChoices, consider the origins of the provision concerning “operational reasons” for dismissal. The Prime Minister stated that this provision arose from a dispute at the Blair Athol coal mine, in central Queensland, owned by a subsidiary of Rio Tinto. Blair Athol management, according to the Australian Industrial Relations Commission, had created a “black list” of union members who were “singled out for termination” through a redundancy process. Mine management went about “demeaning” those targeted for termination, a practice “designed to force (unionists) to accept the redundancy package”.

This case was pursued by the blacklisted workers under the unfair dismissal provisions of the old law. Following numerous cases, appeals and delays, most of the workers were reinstated and the case was settled after seven years. Reports suggest that Rio Tinto spent $20 million in legal fees, trying unsuccessfully to keep these 16 unionists out of its mine sites.

Then along came the chance to rewrite the rules. Lawyers from Freehills, who represented the employer in the Blair Athol case, and other firms commonly representing employers, helped draft the WorkChoices legislation. No more Blair Athols.

In regional areas, away from the resource boom districts, alternative opportunities may be hard to come by.

There is a national shortage of nurses yet in Parkes, 100 kilometres from Cowra, a nursing home gave five nurses a work choice: take a 22 per cent pay cut to become “care service employees”, or be made redundant. That’s legal, said the OWS. In a small town, if you take on your employer, you may also be hurting your chances of getting a job elsewhere. So there are stories from places like Coffs Harbour, Merimbula and Albury of people forced to sign AWAs that cut their pay, in ways that are mostly illegal but for which redress is quite impractical.

For women, the problems of WorkChoices are not restricted to regional areas. Women are more reliant on awards, and people reliant on awards have most to lose from WorkChoices. Most on collective agreements will have the collective bargaining power to resist reductions in pay and conditions. But those who are entirely award-reliant, who until now have been subject to the collective protection of awards, are people who are without individual market bargaining power. They have suddenly had that collective protection taken away.

Women have more to lose from the attacks on institutions and from the shift to individual contracts. Unionism and collective bargaining have a bigger positive effect on women’s pay than on men’s. Conversely, individual contracting has a bigger negative effect on women’s pay than men’s. Women on individual contracts agreements have an hourly wage nearly one-fifth lower than men, whereas for women on collective agreements the difference is more like one-tenth.

WorkChoices killed off the ability of women and unions to pursue equal pay, parental leave and other important conditions through industrial tribunals. Indeed, some types of equal pay claims are now illegal. At the same time, actions that are illegal may become increasingly tolerated.

Western Australia’s Equal Opportunity Commissioner warned that one consequence of WorkChoices is a fear among workers about lodging complaints concerning discrimination. Stripped of the collective protections provided by the law - or at least, of confidence in these protections - it is women who are most vulnerable in the dysfunctional workplace.

But it is both easy and dangerous to fall into a sort of resigned torpor, to accept that all our rights have been taken away and we might as well just get used to it. In reality, workers still have many rights at work. There are a lot fewer than existed in the past, but they still exist. The problem for many workers is to know what rights they still have, and possess the confidence to exercise them. This is a special problem for non-unionists, who make up the majority of employees, as they are less likely to be informed about their rights or to have the ability to enforce them.

In one way, workers are lucky that WorkChoices came in when it did - during a resource-driven boom. For many occupations, there simply are not enough workers to meet employers’ needs.

But try explaining to the half a million workers presently unemployed that they are the ones with the upper hand in bargaining with a potential employer, and see what sort of look you get. Explain it to the sole parents or the disabled people on “welfare-to-work”.

The “boom” is uneven, many people are missing out (real wages are falling for about half the workforce), and economic growth is slow in several states. No boom lasts forever, and this one will come to an end as surely as every other has. Then, even the workers who are momentarily protected from the effects of these laws because their skills are in short supply will find them biting hard.

In the long run, it is that fundamental shift in power - which eventually tears away the entitlements that workers fought so long to get - that represents the biggest threat posed by these laws. It is not what it does in 2007 or 2008 that comprises the worst aspects of WorkChoices; it is what it could do to the prospects of our children and our grandchildren.