Date: Wed, 13 May 1998 12:39:52 +1000
From: pmargin-AT-xchange.anarki.net (Profit Margin)
Subject: AUT: LL:ART:LAW CHANGES:NEW DANGERS WORKERS, UNI


this article is a useful insight into the thinking of the 'broad left'
within the Australian union movement. It also epitomises the yearning of
those circles for the 'good old days' of the postwar compact between labour
and capital . . .


>Date: Wed, 13 May 1998 11:47:11 +1000
>From: The Guardian <guardian-AT-peg.apc.org>
>Subject: LL:ART:LAW CHANGES:NEW DANGERS WORKERS, UNI
>To: leftlink-AT-vicnet.net.au
>Sender: owner-leftlink-AT-vicnet.net.au
>Precedence: bulk
>Status:
>
>>From Industrial law to Civil law:
>New danger for workers and unions
>
>The following article was published in "The Guardian", newspaper
>of the Communist Party of Australia in its issue of Wednesday,
>May 13th, 1998. Contact address: 65 Campbell Street, Surry Hills.
>Sydney. 2010 Australia. Fax: (612) 9281 5795.
>Email: <guardian-AT-peg.apc.org>
>Webpage: http://www.peg.apc.org/~guardian
>Subscription rates on request.
>******************************
>
>By Anna Pha
>It is five weeks since Patrick Stevedores sacked its workforce
>leaving 2,000 wharfies (permanent and casual) without work.
>During that period the struggle has been waged by many means:
>pickets, peaceful assemblies, workplace meetings, marches,
>rallies, international threat of bans, posters, stickers,
>leaflets, publicity, T-shirts, in the media, in the courts and so
>on. There is one substantially new factor that has had hardly a
>mention -- the court actions are taking place in the civil courts
>and NOT in the Industrial Relations Commission (IRC).
>
>In the past, a dispute of even a fraction of this magnitude and
>importance would have been in the Commission from the outset. The
>employers, the government, the union or the Commission itself,
>would have taken the dispute there. The first step would have
>been conciliation -- bringing the union and employer together to
>talk.
>
>The Commission had powers to force the parties to negotiate, to
>order a return to work, to arbitrate, to determine union
>coverage, etc. That was before the Coalition Government's
>Workplace Relations Act.
>
>Reith's new laws removed most of the Commission's powers to
>intervene in disputes. The Commission lost its powers over the
>making of enterprise agreements and has virtually no role to play
>in relation to individual contracts. Its arbitration powers are
>basically confined to awards and then only in relation to "20
>allowable matters". It has been given the task of award
>stripping.
>
>Class struggle
>
>The Commission (formerly known as the Conciliation and
>Arbitration Commission) was set up in 1904 for the purpose of
>"preventing and settling disputes". It arose out of the demands
>of the unions for an "independent umpire" following the union
>defeats of the 1890s.
>
>The conciliation and arbitration system sought to regulate and
>contain organised labour. It involved trade-offs.
>
>The unions accepted certain limits on their actions and state
>interference in the governing of their organisations. In return
>they were given legal recognition (through registration) and a
>number of important rights, including the rights to exist and to
>collectively bargain on behalf of their members.
>
>This form of recognition and regulation of trade unions was used
>for more than 90 years as a centralised means of determining
>wages and working conditions and settling conflicts between
>labour and capital.
>
>Award provisions had the force of law and covered not only
>members of unions but workers across industries or occupations.
>
>Under this centralised award system workers waged the class
>struggle through their union and made many gains. Individual work
>contracts were an oddity.
>
>Dispensing with unions
>
>As soon as Workplace Relations Minister Peter Reith and his Prime
>Minister John Howard came to office in 1996, they set about
>removing trade unions from the picture.
>
>Trade unions do not have any place in their narrow economic
>rationalist view of the world in which capital and the interests
>of capital are to rule over the whole of society. Their view is a
>highly class conscious view -- the consciousness of the
>capitalist ruling class, the big corporations.
>
>Trade unions are an obstacle to their plans to reduce wages and
>conditions to the level of world's worst practices -- to the
>level of the poorest low wage countries.
>
>The Workplace Relations Act was a big part of their attempt to
>remove unions from the scene.
>
>The Act along with amendments to the Trades Practices Act TPA),
>bring about fundamental changes. They:
>
>* shift the focus to the workplace, replacing the centralised
>awards by enterprise agreements or individual employment
>contracts (Australian Workplace Agreements -- AWAs);
>
>* exclude the union from negotiations with employers (an employee
>has to make a specific request to be represented by his or her
>union);
>
>* shift the focus of relations between labour and capital from
>employers and unions to that between employers and individual
>employees;
>
>* shift the handling of breaches of agreements or individual
>contracts, unlawful dismissals and other issues from the
>specialist Industrial Relations Commission to civil
>(Magistrates', District, County) courts (Court action is the only
>avenue to redress breaches by an employer of an AWA.);
>
>* impose penalties through civil courts through such means as
>court injunctions, contempt of court, common law actions for
>damages;
>
>* outlaw industrial action except during the negotiation of an
>agreement -- the TPA outlaws solidarity actions and other forms
>of secondary boycotts;
>
>* remove trade union rights -- e.g. outlaw paid stopwork meetings
>and preference to unionists, weaken the right of entry.
>
>The main thrust of the changes was to shift the governance of
>relations between labour and capital out of a system designed to
>deal with labour relations into one which is far more legalistic
>and technical and based on the principles of corporate law.
>
>Contract law
>
>Industrial relations law is being replaced by contract law as
>though employees and employers are on an equal footing with equal
>bargaining power. But there is no level playing field. An
>individual worker does not have bargaining power. The power of
>workers lies in their collective ability to withdraw labour.
>
>AWAs are in effect a commercial contract subject to laws along
>the lines of contract law.
>
>AWAs may contain confidentiality clauses. The Employment Advocate
>(a compromise to get the Bill through) cannot divulge the names
>of employers or employees who are parties to AWAs, not even to
>the worker's union.
>
>The government transferred secondary boycott provisions out of
>the Industrial Relations Act into the TPA (the civil law arena).
>This Act is being administered by Alan Fels who has already
>bought into the MUA dispute and is threatening legal action
>against the union.
>
>Unions and workers are subjected to the same restrictions as
>corporations and harsh penalties (running into millions of
>dollars) if they breach the TPA.
>
>Action by workers (except "protected action") is not seen as
>industrial action but breach of contract and the offending
>workers and their unions can be sued for damages, issued with
>court injunctions and be in contempt of court if the injunctions
>are breached (punishable by jail or massive fines).
>
>State laws and procedures governing the class struggle between
>labour and capital are also being recast as corporate law.
>
>MUA in courts
>
>The impact of the new laws is evident in the Maritime Union of
>Australia struggle.
>
>The Industrial Relations Commission could not intervene. Nor
>could the MUA expect to use the Commission to gain justice.
>Instead, an important part of the struggle is being waged in the
>civil courts at great cost to the MUA.
>
>The number of court cases in the MUA dispute runs into double
>figures.
>
>There have been two rounds in the Federal Court and one in the
>High Court seeking reinstatement of the sacked wharfies.
>
>There is still the case to run in the Federal Court regarding
>allegations of unlawful terminations, discrimination and
>conspiracy.
>
>There have been four rounds (one still pending) in the Victorian
>Supreme Court resulting in injunctions against MUA members and
>the public picketing at Melbourne Ports.
>
>The NSW Supreme Court has also issued injunctions and then
>extended them and is presently hearing Patrick's actions against
>the MUA and union officials for allegedly contravening the Sydney
>injunctions. The union officials face jail sentences if
>convicted.
>
>The Supreme and Federal Courts in Western Australia have between
>them issued three rounds of injunctions against picketing.
>
>The MUA has a case before the Federal Court seeking payment of
>wages for Patrick's Port Botany workers who were not paid for
>work done while overtime bans were in place.
>
>There are others court cases in Qld and more in the pipeline.
>
>The Australian Competition and Consumer Commission is ready and
>waiting to take the MUA to Court for allegedly organising a
>primary boycott through the International Transport Workers'
>Federation (ITF).
>
>Patrick's has already taken the ITF to court in Britain and
>together with the Commonwealth Government is considering further
>court actions in Britain and the US against the ITF for allegedly
>inducing shipowners to breach contracts.
>
>There could also be actions against the MUA and its officials
>under the Crimes Act.
>
>Patrick's has been able to string the dispute out for weeks by
>running to the courts and by provocative action forcing the MUA
>into the civil courts in pursuit of justice or the enforcement of
>earlier court decisions.
>
>This would not have been possible under the old industrial law.
>The "justice" being meted out has a relatively narrow focus. It
>cannot address questions of fairness or the consequences of its
>decisions beyond ensuring they can be carried out.
>
>The cost involved is astronomical. An individual worker could not
>pursue justice without considerable financial backing. If ever
>there was an argument for needing a union, then the Reith/Howard
>Government has provided it.
>
>These laws effectively put any rights workers have beyond their
>reach unless they have a trade union backing them -- and even
>then the union needs to have considerable means and financial
>support.
>
>The shift to corporate law, apart from its aims of weakening
>labour and strengthening the hand of employers, is part of a
>wider agenda where virtually everything is being put on a
>commercial footing.
>
>Education and health services, for example, are being
>transformed. They have become a "market". Students and patients
>are "clients" purchasing a product. Free services are transformed
>into user pays. The almighty dollar is taking over as the motive
>force replacing social goals and ignoring people's needs and
>rights.
>
>The MUA dispute demonstrates the urgent need for the repeal of
>the Workplace Relations Act and the secondary and primary boycott
>provisions of the Trades Practices Act.
>
>It also demonstrates the necessity to maintain the principle of
>collective bargaining, of trade unions, the centralised award
>system and the need to fight individual contracts.
>
>
>'I defy anybody to go and get passports for 76 current and
>ex-serving soldiers to go to Dubai next week and not have
>Foreign Affairs and ASIO all over them.'
>Andrew Harris, quoted in SMH, 9 May 1998
>http://www.smh.com.au/daily/content/980509/pageone/pageone5.html
>
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