When discussing power and its implications, one must take into account several key things: who the proponents are, what positions they hold, and what they have to gain from exercising power. Generally, it is obvious when power is employed, it is one group contesting the other, and an outcome is achieved by the exercise of power, usually by the group in the strongest position. However, often, relations become distorted when institutionalised power is at play, and likewise with ?people power? groups. The present relations between the Federal Government and the union movement continues to be a struggle for both parties. By introducing Industrial reforms, the government has made a two-pronged attack on workers and the union movement. The following essay aims to demonstrate the different types of power these two groups hold, how they use it, and the likely outcomes of such a struggle. This will be established in part by outlining the various reforms to Industrial Law which affect unions and using two corresponding case studies to ascertain how reforms and a general ideology clash have affected the function of unions and how, consequently, unions use the power they do have to compensate for this.
Since the 1980?s, the structure and role of Industrial relations has been in a state of metamorphosis. This has been due to a number of changes in the ideology and logistics of the workforce and key shifts in institutional power. After 1975, and the panic and economic burden of the Vietnam war had subsided, business began to pressure both Coalition and Labour Governments to improve the waning fortunes of private enterprise by a combination of economic restructuring, tax cuts and wage cuts, along with reduced spending on welfare, education and health. The union movement had been the main obstacle to achieving these goals and so had been singled out for special attention by business lobby groups. The Fraser administration tried and failed at both the economic and industrial tasks set by business and it was not until Bob Hawke was elected in 1983 and the Accord framework put in place that the business agenda of economic restructuring was put in motion (Workforce 1997, p5).
The Accord lifted the share of national income going to profits and enabled some Australian companies to become internationally viable. As the corporate sector?s profits continued to rise, business changed approach and actively supported Labor in the consecutive elections of 1984, 1987 and 1990 (Workforce 1997, p5). However, Labor?s economic restructuring with the Accord did not carry the business sector as far as expected, and in the pre election hype of 1996, it was courted by the Coalitions promises of radical strategies to facilitate economic growth and better deals for big and small business. However, the Coalition was concealing some of their more strident plans for the working population, and veiled it under their expressed concerns on what they termed as a ?trade union monopoly?(Howard in Wood 1996, p5).
As early as 1985 when John Howard was elected Liberal leader, he declared ?The biggest single challenge over the next five to 10 years is to free up the labour market?it does involve a winding back of certain elements of trade union power.? (In Kelly 1998, p5) After a successful election in 1996, Howard, with the encouragement and help of Workplace Relations Minister, Peter Reith was finally able to set in motion a series of changes that would permanently alter the role of the union movement. A discussion paper issued in March 1996 propounded ?a more direct relationship between employers and employees, with a much reduced role for third party intervention and greater labour market flexibility?(Reith 1996, p29) By ?third party? Reith meant solely, the union movement.
It is not restricted information that the Liberal/Coalition and the union movement have permanently been at odds. They have opposing ideologies and possess different kinds of power to back up those ideologies. The Coalition?s primary aim is to advance economic growth, mostly by promoting big business and to a lesser degree, small business. Their belief is that by creating economic wealth through these avenues, it will stabilise the country and promote independence. Thus, their sympathies must lie with employers. Alternatively, the union movement, is principally concerned with the rights and liberties of the workers who sell their labour. Both parties have only their interest group in mind, hence the reason for such power relations between the two.
The reforms to the Industrial Relations Act (which was renamed the Workplace Relations Act) of 1996 saw significant additions, revisions and deletions to many sections of the Act. The Coalition purported them to be in the interest of ?equity in the workplace? and ?providing a framework for cooperative workplace relations? (Lee, Peetz 1998, p19). However, it seems more than coincidental that after a life time of loathing, the Coalition has been able to undermine and weaken the union movement under the guise of beneficial workplace reforms. The major reforms to the Act pertain to 5 main sections, which deal with:
The first reforms relate to the standing powers of the Industrial Relations Commission. In the Industrial Relations Act 1998 the general powers of the commission arose under Part VI of the Act, specifically ss 99-105 dealing successively with the notification , finding, conciliation and arbitration of disputes. Those powers were then to be exercised within the context of the statue as a whole ? its object and many further requirements or limitations (Rimmer in Lee & Sheldon 1997, p54). However, in practice these few simple clauses changed the role of the commission as we have previously known it. It has now been limited to 20 ?allowable matters? which unions can bring to the commission. These include:
?Classifications of employees and skill-based career paths
?Rates of pay generally, rates of pay for junior, trainees or apprentices, and rates of pay for employees under the supported wage system
?Piece rates, tallies and bonuses
?Annual leave and leave loadings
?Long service leave
?Parental leave, including maternity and adoption leave
?Loadings for working overtime/ casual or shift work
?Notice of termination
?Dispute settling procedures
?Type of employment
?Pay and conditions for outworkers (WRA 1996, s89A(2))
Simplifying matters to appear before the commission has certainly affected unions. Their primary role has been restricted to ensuring compliance by employers with Awards and with a licence to act on behalf of members only as and when expressly requested and authorised by the members, and not otherwise. It is also intriguing to observe that changes to awards came shortly after Australian chamber of Commerce and Industry affiliates filed an application in the Commission to strip back various awards to include only ?allowable award matters?.
Secondly, and probably most importantly for workers, provisions for Certified Agreements and Australian Workplace Agreements have been radically altered. Certified Agreements are not new; provision was made for them in s115 of the 1988 Act. However, the 1988 Act provided a central role for unions in the negotiation of enterprise agreements where the 1996 Act does not. This addition to the Act lays the foundation of the concept that employers and employees should take primary responsibility for the negotiation of the terms and conditions of employment in their particular workplace. Even where an employer seeks to negotiate a Certified Agreement with a union, it may only do so where the union has at least one member employed in the workplace, and who will be covered by that particular Certified Agreement. Where an employer seeks to take advantage of the right to negotiate certified agreements directly with its employees, unions are only entitled to represent the industrial interests of employees if they:
(a)are members of the union and the union is entitled to represent the employees? industrial interests in relation to work that will be the subject of the agreement; and
(b)have requested the union to represent the employees in meeting and conferring with the employer about the agreement
(Workplace Relations Act 1996, s 170LK (4))
However, where the agreement is made directly with employees, the employer must notify employees that they may be represented by any union that is entitled to act in their industrial interests in any meetings regarding the Agreement. Discretion is left entirely up to the employee, the union has no influence in the matter.
While Certified agreements are made with certain divisions of the workplace, Australian Workplace Agreements (AWA?s) are made between employers and individual employee?s. Furthermore whilst certified Agreements allow for union representation, and in fact some employers request this, AWA?s have no official role for unions, instead, the task falls to the office of the Employment Advocate, whose primary role is to evaluate and approve AWA?s. Unions may undertake the unofficial role of bargaining agent, but unlike Certified Agreements, the employer is under no obligation to make the employee privy to the information that unions may be called in, in special circumstances. In the case of Certified Agreements, the union may make submissions to the employer even if they only have one member under the agreement, but unless it has been employed as a bargaining agent, the union is expressly prohibited from making submissions or being heard in relation to the ?filing, approval, variation or termination of an AWA. (Workplace Relations Act 1996, S170 WHA)
The section containing Minimum Conditions has also been altered so as to exclude union interference to a minor degree. Unions have retained the right to represent members before the Commission and the Court in matters involving complaints arising form the termination of employment, however, the Act has changed the distinction between unfair and unlawful termination. Unions have lost the right to make an application to the commission where the complaint only arises from employee declaration of unfair, unjust or harsh dismissal, they do, however, retain the right to represent the employee if it arises from unlawful termination. Before there was distinction between the two types of dismissal, unions could take the employer either to court or the commission for both disputes.
Also under Part VIB, which pertains to Certified Agreements, s170MN has been added. This concerns when protected industrial action may be undertaken. Protected industrial action instigated by employees or unions, is explicitly prohibited outside bargaining periods for Certified Agreements. In order for the industrial action to be ?protected? unions must give written notice upon the expiry of the old Certified Agreement or AWA and before bargaining begins on the new agreement, that they intend action to take place. According to new section 127, this action must be authorised, and can be terminated immediately if the Commission considers that a party (unions or employers):
?is genuinely not trying to agree
?fails to follow commission directions; or
(Mourell in Lee, Sheldon 1997, p113)
No longer do unions have the right to instantaneously withhold labour on behalf of workers; the most formidable power they have held in the past.
In that same Part, that which deals with Dispute Prevention and Settlement Part VI, Section 127AA deals with new Rights of Entry. Provisions in awards concerning right of entry are now unenforceable. Unless a permit has been requested by an individual union official and has been granted by an Industrial Registrar, rights to enter premises have been revoked. If they do receive the permit is not transferable to any other union official, stands for only three years and may be revoked at any time by the commission. Even with the permit, union officials are required to give 24 hours notice of entry and must not enter unless they have at least one member on the site. They must also inspect exclusively during office hours and interact with members only on meal breaks (Workplace Relations Act 1996, Part VI s127AA, s285G & s285A). Thus, surprise visits to unscrupulous employers, one of the ?big guns? in the union arsenal have now been made illegal.
Perhaps the most critical reforms affecting unions directly are the changes to Part IX-Registered Organisations and Part XA-Freedom of Association. These two reforms are also outlined in (f) and (g) in the Objects of the Act:
(f)ensuring freedom of association, including the rights of employees and employers to join an organisation, or association of their choice, or not to join an organisation or association;
(g)ensuring that employer and employee organisations registered under this Act are representative of and accountable to their members and are able to operate effectively (WRA 1996, Objects)
These two amendments have really ?hit unions where they live? (Gibb 1999, p17) in regards to membership. Part IX, dealing with Registered Organisations, encourages the registration of small enterprise Associations by decreasing the minimum size of unions from 100 to 50 (ss189(1)(b)& (1)(c)) and doubling the limit of annual income from $10,000 to $20,000 before an organisation has to comply with certain accounting requirements that larger unions do. As a consequence this is promoting movement away from larger, more powerful, amalgamated unions to the weaker associations with limited resources and money.
This reform becomes a dual attack on Union membership when combined with the new Freedom of Association section which has replaced the repealed concept of ?conveniently belong?(which essentially means that there must only be one union to which members can conveniently belong or which can effectively represent them). Since employees have the choice to belong to a union, or refrain from taking membership, union representation has decline from 31.1% in 1996 to 24.7% in 2001 (Klikauer, T. 2001,http://list.waikato.ac.nz/archives/prir-l/2001/04/msg00034.html) This section effectively puts an end to union preference or closed shop agreements, whether formal or informal, punishable by penalties against the union or organisation (Workplace Relations Act 1996, s298Y). It also establishes provisions to prevent victimisation of union members by employers, now that being part of a union is a unfavourable in terms of who to hire.
All major reforms to the Workplace Relations Act influence the mechanism of the union movement in some way, however, the reforms outlined above communicate the largest effect. The government may indeed be attempting to reform the workplace so as to create a more equitable environment for both employers and employees, but are also taking this opportunity to mark provisions to quash any stronghold that unions may have on the workforce. Since 1996, and the passing of the Act, Peter Reith, and his successor, Tony Abbot have constantly tabled reforms (often a rehash of previously rejected amendments) to harm unions and union perception. In 1999, Reith tabled a ?Second Wave? of reforms to pass before the senate, however, ? The bill failed to address issues the Democrats believed were more important that attacking already depleted union power?? (Workforce 2000, p1). Before his resignation, Reith had again tabled reforms, many being formally rejected in the first and second wave.
The degree to which these reforms have affected unions is still being revealed. The entire movement has found it demanding to persevere with strategies for overcoming incongruity in the WRA 1996, however, as an increasing number of cases test the boundaries of the Act, unions begin to understand how these hurdles are overcome, or at least, operated inside to the satisfaction of all parties. The government has used their influence to instigate reforms that have reduced the power of unions, but now, unions are discovering that these reforms lend a certain power in themselves. In trying to scale down the number of unions, and weaken the ones that are existing, the government has succeeded in creating a sort of solidarity between unions that would never before existed. This is clearly seen in the case of the ?waterfront dispute? of 1998.
Two of the country?s largest and most powerful unions, the Maritime Workers Union and the CFMEU (Construction, Forestry, Mining and Energy Union) were the focus of governmental ?union busting? after the election in 1996, due to the fact that the industries concerned have a extraordinarily large union membership percentile (CMFEU 2001, http://www.cfmeu.asn.au/). The government saw these two unions as a threat to Industrial reforms, and formulated strategies to break their grip on the industries they represented. By the very force of their membership, the government knew that these unions were powerful enough to negate most attempts to shut them down.
The government is generally reluctant to use the full extent of its power against ?people power? groups like unions. A democracy, by its very nature doesn?t sanction it. However, if they can use another source of power to manipulate relations, and in the interim, clandestinely support that other source, it retains the fa?ade of even handedness and prevents attack on the government directly. This is what happened in the case of the MUA Waterfront dispute in 1998. Early in 1997, after the Workplace Relations Act had come into effect, Peter Reith and transport minister, John Sharp initiated consultation with Chris Corrigan from Patrick Stevedores. ?These meetings culminated in a submission endorsed by the Howard Cabinet in July which argued for an ?activist? strategy and a full scale attack of the MUA including the dismissal of hundreds of wharfies? (Bramble, T. 1998, p10) In fact, the aim of the government was to demonstrate to workers and activists that no one could challenge their efforts to reform the workplace, and objective to put business first.
In December 1997 the Federal Government had conspired with Patrick to train 30 former military staff in Dubai, in readiness to take over the positions of the sacked waterfront workers. The MUA discovered this operation and conferred with the International Transport Workers Federation to block shipping in Dubai. This ultimately saw the Dubai government withdraw the working permits of the replacement workers, and an end to that strategy (ACTU 1998, p3).
In January of 1998 Patrick sub leased part of its Webb Dock facilities in Melbourne to Producers and Consumers Stevedores (PCS) and locked out its unionised workforce. February and March of that year saw some limited industrial action in Sydney, Fremantle, Melbourne and Brisbane, but it was generally unsuccessful in terms of Patrick?s coming to any agreement with the MUA. However, following late night raids on port facilities around Australia by Patrick security guards, armed with attack dogs, Patrick sacked it?s entire unionised workforce of 1,400 permanent staff and 300 part time workers and announced that it would outsource a range of services by its own hire companies to nine outside contractors including PCS (Labour Council 1998). Two days later, Richard McGregor of The Australian commented at length on reasons why the government would possibly support such excessive measures:
? the government sees the night time takeover and the industrial outrage that it sparked as the kind of short-term pain that will bring it unambiguous gains, both politically and economically. There are numerous different agendas here, including Peter Reith?s effort to prove his mettle to powerful Liberals who believe his 1996 industrial relations reforms were too soft. But the fight here is fundamentally ideological – the Coalition?s determination not to pass up what it sees as an historic opportunity to break the power of unions on the waterfront. The wharves are the first target. The construction and coal industries will follow. Canberra and [?] Patrick, together have a formidable array of legal options to limit the industrial response from the unions, including the threat of punitive fines for sympathy strikes, so-called secondary boycotts. (McGregor 1998, p6)
First the Coalition implements IR reforms, and then goads one of the country?s most powerful unions into industrial action which will unquestionably result in punitive measures and the threat of annihilation for the MUA. Not since the initial passage of the reforms in 1996, had the government seen victory on the industrial front, and was eager to end the ordeal with as little damage to their public image as possible. However, very significant was the understanding between the ranks of the union movement, that if the MUA fell, no union would be safe. Union solidarity, it seemed would be the only thing to stop the dispute, and in the long term, the Howard Governments attempts at de-unionising the workforce.
?Peaceful protests? were held throughout early April by the sacked workforce and many supporters, until April 21 when Federal court Justice Tony North issued orders reinstating the unionised Patrick workforce. However, the orders were immediately appealed by Patrick and stayed by the court (Osiris 2001, http://www.osiris.gov.au/html/decisions/browse/.htm). Once again, on 23 April, the Full Bench of the Federal Court found Justice North?s decision ?free from appellable error? and the Patrick workforce was reinstated. Patrick again challenged the decision in the High court. During the volley of litigation, protests were involving increasingly more of the country and world shipping bodies. Dockworkers in South Africa and Japan banned Australian cargo, blue collar unions such as the CFMEU and The Transport Workers Union organised sympathy boycotts and students marched in protest (ACTU 1998). The MUA were virtually holding the country to ransom.
Patrick?s challenge of the reinstatement orders was overturned on May 4, and 370 PCS workers were forced off the docks. Patrick had run out of confidence in terms of liberating themselves of a unionised workforce, and negotiations began with the MUA. Two days later, MUA members were reinstated to the docks, and certified agreements that reflected both parties wishes, were aimed for. However, the final deal between Patrick and the MUA fell short of what could have been achieved (The Guardian 1998, p 7). 50% of jobs were not reinstated in the long term, many being outsourced to contractors, workers received major pay cuts and casual employment took the place of many full time jobs (O?Neill, 1998). These were concessions that need not have been made, were it not for the union-busting ideology of the Coalition.
Many saw the waterfront dispute as a victory for workers, but very few saw it as a victory for unions. Since the instatement of the WRA 1996, unions have had to work within a legal framework that has never before existed. Where the government?s victory lay was in the torrent of legal proceedings that the union had to engage in. No more is it a power of its people which sustains union control, it has to be the ability to recognise ambiguity in legislation. The MUA worked within the new system, and found it lacking. Some concessions were made by Patrick, but in terms of MUA gains, it cannot be seen as a successful undertaking. The government has essentially achieved its aims where it concerns changing the role of industrial relations, and it is none more obvious than the depleted reserves of the MUA. Once a powerfully militant union, it now considers a merger with the Transport Workers Union of Australia (Pryor 2001, privy information) so that once again, it may return to what unions such as these know best, and that is the magnitude of people power.
For unions that rely on formidable reputations as a form of power, working within the system has been very difficult. They are forced to discern new strategies, and rely on the guidance of legal experts. However, as the WRA Act is yet an unfinished work by the government, unions may find that in some cases it is more satisfying to ?go by the book? (Pryor 2001) as is evidenced in the case of Mayne Nickless and Transport Workers Union of Queensland.
Mayne Nickless, trading as Armaguard had in place various standard certified agreements, pertaining to the area of work in which employees were engaged. It was the belief of a majority of employees of Mayne Nickless that the standard of organization in terms of rates of pay, allowances and occupational health and safety were substandard. Pursuant to the terms of the act regarding agreements and the bargaining period which allows for protected action, TWU delegates on the Armaguard site enlisted the TWU as a bargaining agent(Pryor 2000, p6). Armaguard was long known in the union quarter to be inflexible in regards to agreement making, and as such, as soon as the bargaining period began and talks became unproductive, the Transport Workers Union provided notice that industrial action was to take place:
By letter dated 11 July 2000 the Federal Secretary of the TWU gave notification to Armaguard of an intention to take industrial action? (IRC 2000, 961/00)
The TWU had previously been fined for unprotected action against a large transport company, and so was experienced in the new protocol of industrial action (Pryor 2001). The government had provided the framework, and now unions like the TWU were using it to their advantage. The only way for Armaguard to prevent industrial action, was to make it illegal, and for that they had to submit an application to end the bargaining period including reasons for doing so. On 14 July, Armaguard applied for termination of the bargaining period pursuant to section 170W(3) of the Workplace Relations Act 1996 which states in the following terms:
Since actual industrial action had not yet taken place, and Armaguard was merely pre-empting it, the commission found no grounds to provide the termination (IRC 2000, 863/00)
Union officials held stop work meetings on 17 and 18 July and on 24 July once again, Armaguard applied for the termination of the bargaining period. However, since the action had already taken place, and no more action would be taken until July 28, the commission found that it had no jurisdiction in ending the bargaining period after action had already taken place, but instead listed the matter for further hearing on 28 July.
Armaguard applied again for the termination on the day predetermined for stop work meetings, July 28, under the same jurisdictional requirements as they had previously, that being broadly to endanger the population and damage the economy. Once again the commission denied the termination of the bargaining period, saying:
Can it be said that the industrial action is threatening to endanger the life, personal safety or health, or welfare of the population or part of it. I think not [?] in my view, having regard to arrangements which were made by the company in anticipation of the industrial action there have been no such effects since 8:00am which are the subject of evidence before me. (IRC 2000, 962/00)
In the summary decision, the commissioner noted his intention to elaborate on his reasons for not granting the termination. On 4 August his findings outlined that Armaguard was not summarily inconvenienced by the action; the public and economy was in no way damaged, and that the Transport Workers Union was in every way within their legislative rights to take the action that they did. It must be noted too that a new agreement was signed to the satisfaction of both parties.
Unions have found, as in this case, that working within the legislative framework is the only way to succeed in the industrial relations climate today. It is in this way that the government has really triumphed over the union movement. The Coalition used its new found legislative power to get an edge over the movement as they never could before. The raw and sometimes, crude ?people power? of yore is no longer enough. The union movement has had their power drastically reduced by IR reforms, but are now finding ways to overcome this and find a certain control of situations in doing so. However, it is debatable how long it will continue this way with the Coalition continuously tabling reforms; it will only be after federal election later in the year that we shall truly see if unions are safe for the moment. The Coalition has removed Industrial relations reforms from their election platform in the knowledge that workers, and union members constitute a large part of voting percentage.
Changes to social environments such as the workplace, are dependent on the power of the groups doing the changing. The government has subsequently had the imbibed institutional power that it takes to change legislation, but chooses not to use it for fear of losing the power they have now. Unions must seize upon the powers that they still have to restore confidence of workers and work harder for the members that still exist. It is an opportunity for unions to demonstrate that institutional power will never beat the power of people.
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