Some lawyers are calling the Work Choices legislation the Old and New Testaments. But at 700 pages it may be longer. The biblical reference comes from the reality that to capture all of the workforce, Work Choices needs both the conciliation and corporations powers of the constitution. It's in fact two bills in one.
It's important, however, to see Work Choices in context. It's only one part of the reform. The full package includes the proposed Independent Contractors Act, new tendering requirements for construction projects and the start of the Australian Building and Construction Commission. Each element targets different aspects of the government's agenda, which is a response to a changing society. The Prime Minister's speech in July to the Sydney Institute explained this.
The Prime Minister says that the vast number of workers no longer seek dependency on a protective employer. The "enterprise worker" mindset is what has caused 28 per cent of the private sector workforce to become independent contractors, according to my analysis of Australian Bureau of Statistics data. And huge numbers of employees now have all the enterprise attitudes and aspirations required to be self-employed.
The Independent Contractors Act will quarantine independent contractors from all industrial relations legislation, clarifying that they are subject to commercial laws.
Work Choices will empower employees to directly control their own agreements. The government is convinced that workers not only want to control their work destinies but have the intellect and capacities to do so. It is giving workers the power.
The industrial relations system never empowered workers. It empowered unions to engage in war with employers, allegedly on behalf of workers. And have no doubt, Work Choices is a huge legal and cultural shift. The capacity of unions to initiate and engage in war with bosses is being significantly narrowed.
For unions, the industrial relations system has always been about their control of the processes of worker war. The ability to create paper "disputes", pull employers into an expensive, complex industrial legal system and to conduct strikes without facing financial pain themselves has been core to their place in society. They have had the ability to threaten the financial viability of businesses without themselves being threatened.
The collapse this week of Kemalex Plastics in Melbourne demonstrates the worst excesses of the old system and gives a glimpse of the new.
The small car-component maker turned over $12 million last year. It had been using independent contractors for over two years with union approval. Under enterprise bargaining agreement negotiations in early 2005, the union demanded Kemalex dispense with independent contractors.
What followed was a strike by half the staff and a nationally run union campaign involving violent pickets, vandalism and co-ordinated media attacks. Unions brought in seasoned picketers and paid the strikers to stay on strike. After 10 weeks, the unions dropped the campaign and even agreed to the continued use of independent contractors.
Kemalex says the $1.1 million in legal fees, excess production costs and plant damage forced the demise of the business and the loss of 80 jobs. It's a familiar story. Industrial laws allow unions to physically, legally and financially intimidate business while protecting themselves from similar intimidation.
But under Work Choices, clauses in industrial agreements and strikes that relate to independent contractors or labour hire, for example, will become illegal. If the new laws had been in place earlier, hefty fines would have applied to the unions. Kemalex would have been able to sue for civil damages. The unions would not have been able to force Kemalex into the commission, saving it large sums in legal fees.
Work Choices goes further. There's a $33,000 fine for even attempting to include a prohibited clause in an agreement, such as stopping or restricting labour hire or independent contractors. Protected strikes cannot occur while an agreement is current. The ability to sue for civil damages will be sped up. Secret ballots will be mandatory for protected strikes. Third parties affected by strikes will be able to make applications to stop them.
In the Kemalex case, car-component customers of Kemalex could have made application to stop the strike. In summary, the range of options available to unions to intimidate will considerably narrow. This will not, however, stop old-style thuggery, which is where the building reforms are critical.
Physical intimidation has had industrial relations cover. Some companies co-operate with the union devil to block competitors. The intimidation culture bred in construction infects most other unions and the nature of industrial campaigns.
The Australian Building and Construction Commission is designed to mirror the Australian Competition and Consumer Commission, with wider powers to target corruption and intimidation. Key ABCC officers have been drawn from police ranks who specialised in organised crime suppression.
This dovetails with new government construction tendering requirements that control the nature of allowed industrial agreements on government jobs.
The government is using its financial muscle. It funds in excess of 40 per cent of construction.
No construction company or union will be unaffected by the tender rules.
This amounts to a package aimed at the prevention of intimidation.
Overarching this is the idea of worker power.
Some say Work Choices will disempower employees. Some argue that workers can never be capable of controlling their own work futures. They may be right. The government is punting on an alternate view.
A line in the sand is drawn.
ADVERTISEMENT
No comments:
Post a Comment