ACTU President Jennie George speaks about the general direction of industrial relations and working life in Australia.
That is a good question to be considering at the moment.
The answer to it depends substantially upon the final outcome of the current waterside dispute and the community’s attitude towards the issues it has raised.
What we are seeing in this dispute is a different approach to industrial relations to that which has until now been the norm in Australia.
It is an approach which reflects the logical end point of the present Federal Government’s changes to industrial relations laws in this country.
These are based on four key objectives:-
1. no role for Industrial Relations Commission;
2. weakening the influence of unions;
3. seeking to replace collective bargaining with individual contracts; and
4. a greatly weakened award system.
In addition, what is notable in this present dispute is the Government’s preparedness to be totally partisan in its approach.
As Terry McCrann, a conservative economics writer in the Melbourne Herald Sun has commented (Friday 24/4/98):-
“Reith personally and as the responsible minister not simply condoned and encouraged but actually participated in” the processes that were undertaken by Patricks.
Finally, the nature of those actions including their possible illegality, also represents a fundamental change in how industrial relations have generally been conducted in this country.
Let me go to each of these points.
1. Role Of The Industrial Relations Commission
The most notable change is of course the absence of any role for the Industrial Relations Commission.
In fact Patricks, on the advice of, and encouraged by, the Minister, Peter Reith, has deliberately arranged its affairs to ensure the Industrial Relations Commission can play no role.
In his recent judgement in the Federal Court Mr Justice North quoted from a briefing paper prepared for the minister for a meeting on the 12th of March 1997.
This states (recommends) “stevedores would need to activate well-prepared strategies to dismiss their workforce, and replace them with another, quickly, in a way that limited the prospect of, for example, the Commission ordering reinstatement of the current workforce.”
It is quite frankly amazing that we have an industrial dispute of such enormous dimensions occurring at the present time and the Industrial Relations Commission not having any role in achieving a settlement.
Instead we have seen the parties seeking recourse to other jurisdictions – the Federal Court and State Supreme Courts and the High Court. The Australian on the 24th April listed a total of ten such cases involving this one dispute.
This reflects the Government’s antagonism to the practical, dispute settling role of the Commission.
Under the Workplace Relations Act the Commission’s arbitral role has been limited to specified allowable matters. Its award making powers need to be exercised in a way that encourages the making of agreements, and such arbitral powers that it has, must only be exercised as a last resort.
This deliberate trend of keeping the Commission out of disputes and allowing them to run their full destructive course is fundamentally damaging to workplace harmony as well as, most importantly, the national interest.
Tom Burton in the Financial Review on 24/4/98 commenting on the dispute has noted:
“The other big implication is for the new industrial order the Federal Government has been seeking to impose after 90 years of a system run and controlled by a central conciliation and arbitration body. If there is an obvious point to emerge from the past fortnight it is the inappropriateness of the law courts, as opposed to industrial tribunals, for sorting through the myriad interests that come to bear in the adjudication of workplace relations.”
As this dispute progresses I am sure more people will appreciate the need for an independent tribunal capable of maintaining workplace peace and workplace justice which is the historic role of the IRC.
2. Weakening The Influence Of Unions
When the Workplace Relations Act came in, the Government insisted that it was not about weakening union power but rather about giving freedom of choice to workers as to whether they should be union members.
The Act however, contains a range of measures designed to make life difficult for unions.
In this current dispute the Government has made no secret of its objective of weakening the power of the Maritime Union of Australia.
The March departmental briefing note to Peter Reith that Mr Justice North referred to stated clearly that the goal being pursued was “for the MUA’s influence on the waterfront to be significantly weakened.”
So this dispute is not about waterfront reform. It is an attack on a union and unionism in general.
Many media commentators have acknowledged this.
As Laurie Oakes of the Bulletin said – and I apologise in advance for the language but this is a direct quote:-
“The Government has never been interested in genuine talks with the MUA about improving productivity on the waterfront …
The aim was to create a public issue where the Government could be seen to defeat the MUA …
‘It was all about provoking a shitfight with the wharfies’…”
And Shaun Carney in The Age wrote:
“the real motivation behind the war on the Maritime Union [is] this Government sees itself understandably as the standard bearer for business people … the source of 20th century unionism was the waterfront and before the century was out this Government wanted to kill unionism at its source.”
The Patrick employees were sacked because they were union members. The Prime Minister said so on ‘A Current Affair’ on 9 April 1998. Asked by Ray Martin why the workers in Adelaide and other highly productive ports had been sacked, Mr Howard said “Well they are all part of the one union.”
That is why this dispute is important for all union members.
If the Government and an employer can do this to the waterside workers no union and no union member is safe from victimisation and discrimination.
3. Collective Agreements -v- Industrial Contracts
Hand-in-hand with the Government’s desire to weaken unions is its desire to replace collective bargaining with individual contracts.
The Workplace Relations Act provided for Australian Workplace Agreements to be an option for workers if they so chose.
That is the rhetoric – the reality is somewhat different.
In practice, this Government wants to see AWA’s replace collective bargaining.
The ACTU is aware of numerous instances whence workers have been forced on to AWA’s.
This often occurs in the context of changed employment structures. For example, in the privatised rail companies we have seen workers retrenched one day and offered new employment with new companies on the next day provided they accept AWA’s. This happened at TasRail and with the sale of AN services in South Australia.
In many instances we don’t get to hear when workers are told to accept an AWA or forget about the job. But anecdotal evidence is clear that this is the real choice many workers – especially in small non-unionised workplaces – face.
These AWA’s of course contain greatly reduced conditions – especially regarding rostering, hours of work and penalty rates.
4. Weakened Award Systems
This is happening on top of an award system which the Government is seeking to have whittled down to the barest framework of minimum standards which it hopes will have only minimal relevance in the real world.
This is being achieved through the review of all awards currently taking place to ensure they deal only with “allowable” matters.
The Government is taking a highly interventionist role in these proceedings across all awards – seeking the removal of a whole range of award conditions some of which are not opposed by the employers party to the award.
This Government has, as I said, been completely partisan in the present dispute on the waterfront. It has actively provoked this dispute.
Let me take you through what it has done.
Through 1996 and 1997 the Government has paid out over a million dollars to conservative consultants for reports on the waterfront.
The reports have never been made public despite requests in the Senate that they be made available and a Freedom Of Information request. The ALP is now going to take action in the Australian Appeals Tribunal to force disclosure of the contents.
There have been meetings between Peter Reith and key players from the consultancy, the NFF and Patrick’s throughout 1997.
In August 1997 the Government undertook polling on community attitudes to the waterfront. This was undertaken by the pollsters used by the Liberal Party.
In September 1997 Government Ministers Reith and Sharp and their departments met with the NFF in relation to a new stevedore entering the waterfront.
In October 1997 we saw the failed Dubai fiasco. Which you will remember involved hired “industrial mercenaries” including serving defence force personnel being actively supported to go to Dubai to train as waterside workers.
In January 1998 we then had the leasing by Patrick of Webb Dock to the National Farmers’ Federation.
6. Type Of Action
All of this culminated with the action of the Company, supported by the Government, on the 7th of April 1998 when we saw the sacking of Patrick’s entire workforce in the dead of night.
The way the sackings were implemented was extraordinary and certainly a change from normal corporate behaviour.
We saw crane drivers being pulled out of their machines in mid shift and surrounded by savage dogs and security guards.
It was a shameful act and horrified most Australians.
Even more horrifying to many was the sight of Prime Minister Howard and Minister Reith’s back-slapping performance in the Parliament about how clever they had been in promoting this action by the company.
What makes it worse again is the company reorganisation that had been undertaken by Patrick in September 1997. This ensured that its employees were employed by subsidiary companies that were at the time of the sackings insolvent.
This means that the workers, having been sacked in this extreme way, were also left with at least one week’s wages owing to them as well as all annual and long service leave and redundancy entitlements.
Frank Costigan, QC, in the Melbourne Age on Thursday 23 April 1998 has compared Patrick’s behaviour to the bottom of the harbour schemes which he helped to expose in the 1980’s. He wrote:
“The behaviour of Patrick in relation to its reorganisation of its corporate structure deserves the strongest condemnation.
Whatever the courts may decide about the legality of such conduct it is, in my view, as unacceptable for a company to shift assets around between subsidiaries, and to strip assets from those particular subsidiaries which are likely to be faced with claims from employees and creditors, as it was for companies to bury their assets in the harbour to avoid the payment of tax.
It is a matter of great concern that the tools of financial and corporate reorganisation are used to put at risk the legitimate claims of creditors and employees.
It is almost beyond belief that such endeavours attracted the applause of the Government.”
I come back to the question which I was asked to address tonight – is this the general direction of industrial relations in this country – is this the future.
I think that our Australian community will not let that happen.
The early signs are encouraging.
First we have a number of court decisions in our favour.
Justice North in the Federal Court has found that there are a number of serious questions to be tried regarding breaches of the Workplace Relations Act, contracts of employment and conspiracy in relation to the sacking of the Patricks workforce.
It is worth noting that in his decision Justice North said:
“There is no material which would justify a conclusion at this stage that the workforce was unsatisfactory.” He referred to various Patrick documents relating to profit levels, and improved performance levels in coming to this conclusion.
His decision was upheld by a Full Bench of the Federal Court on 23 April 1998.
A request for leave to appeal to the High Court was made by the company on 24 April 1998.
The case proper will now be heard later this year by the Federal Court.
It would appear that most commentators now accept that this is unacceptable behaviour from a company and from a government.
As Mr. Costigan stated:
“The events surrounding the late night sacking of the workers, enforced by security guards and dogs, and the asset stripping of the employing companies, constitute an example of financial, corporate and industrial misbehaviour which is unacceptable in this country. It is for the courts to determine its legality.
For my part I am bound to declare that it is offensive to ordinary concepts of decent behaviour. It is the responsibility of the Australian Government to take appropriate steps to make certain it cannot happen again.”
Recent opinion polls would indicate the community is opposed to the new type of industrial relations favoured by Mr. Corrigan and Mr. Reith. The Morgan poll shows a 6.5% drop in support for the Coalition. This is certainly promising.
7. Impact On Other Workers
It is important to remember this week that the dispute is not over. And it does remain vital for other workers in Australia that we win this dispute.
The ACTU has had legal advice which states that if the business arrangements made by Patricks “were to become prevalent” they would “represent a fundamental threat to the job security of Australian workers generally.”
This is because of the secrecy involved which prevented the union going to the IRC.
It is also because of the changed corporate structure of the company.
These shonky business arrangements include:
- turning the company employing the workers into a labour hire company;
- with a contract which permitted the major company to cancel the labour hire agreement so as to in effect sack the workforce (this insulates the major company from claims such as unlawful dismissal or award breaches);
- stripping the company employing the workers of all assets (this means that company cannot meet redundancies and other obligations).
Our lawyers have said “In our opinion the existing legal protections are not adequate to provide proper redress for workers confronted with arrangements of the kind described.”
In conclusion in an environment where employees are feeling increasingly vulnerable and insecure this waterside dispute is of fundamental importance to the future of industrial relations in this country.
I believe the Australian community will ultimately reject the methods adopted by Patricks and the Government.
I think the Courts will ultimately reject them.
The future for Australia is one in which all Australians work collectively in a united way to address the very real economic and social issues that confront this country.
Speech To The Paddington Worker’s Club By Jennie George ACTU President. Wednesday 29 April 1998.