Organising for better pay and conditions

Anthony Forsyth

RMIT University

Organising for better pay & conditions

The industrial & political context of bargaining post - the May federal election

IT’S GREAT that we now have a federal Labor Govt, but we are still stuck with the industrial relations legislation enacted by the last one, made worse by a decade of employer gaming and judicial watering down of the already weak provisions for collective bargaining and the right to strike. The focus will now be on the IR reform process - and the Jobs & Skills Summit in September.

For unions like ours, it’s going to be a matter of pushing Labor to ‘go bolder’ than its policy commitments (in that respect, the Greens’ strong election result could be very useful).

The lesson from 2009 is that Labor cannot buy into business concerns (remember ‘balancing flexibility & fairness’?!) – the first year of this first term is the time to rewrite the Fair Work (FW) Act with the goal of rebuilding collective worker power.

So what does that look like, and where might things end up? Reform of the bargaining system

We don’t have support for genuine collective bargaining in the FW Act – we have a framework of enterprise bargaining, in which employers make agreements with employees, and unions play a role where they are strong enough.

Labor’s election policy says it would address some of the glaring problems in the FW Act that employers have exploited to avoid bargaining with unions, i.e.: • ‘small scope’ agreements, where employers do a substandard agreement with a few employees – but with a wide scope clause that enables the agreement to be applied to a much larger workforce (legitimised by the courts in cases beginning with John Holland Construction seven years ago) • unilateral termination of agreements on spurious

‘public interest’ grounds, pushing workers back onto awards & recasting agreement negotiations in favour of employers – pioneered in the higher education sector in the Murdoch University case, of course. • So Labor will knock those two damaging business strategies over and improve the good faith bargaining provisions, with greater access to resolve intractable negotiations through arbitration.

As for more fundamentally transforming bargaining – Labor’s national platform says it will improve access to collective bargaining, including where appropriate through multi-employer bargaining.

I’ll come to that in a minute – first, let’s consider something that few people are talking about (as far as I’m aware) …

The MSD problem

Majority support determinations (MSDs) were Labor’s solution to the problem (under the Howard Coalition’s laws) of employers refusing to bargain.

So if the big banks, or Telstra, persisted with their individual contracts approach – a union could get an MSD from the FWC, compelling the employer to bargain.

But the union has to prove that a majority of the employees who will be covered by the agreement want to bargain. This can be established through a workplace ballot, or simpler methods like petitions – and MSDs have been granted in many workplaces on that basis.

So in some ways, this has been an effective mechanism – especially in smaller workplaces where it’s not as difficult to show majority support.

However, MSDs are not working in relation to renewal of agreements – and this is playing out in higher education right now. For example, at RMIT, our Agreement expired more than a year ago. NTEU wants to enter into a new Agreement, but our VC told staff in May this year the University won’t begin negotiations until the RMIT NEXT Strategy is finalised, which could be early 2023.

In the meantime, we were given a 2% pay increase. Deakin has also stalled bargaining, although with a 3.75% increase.

The only way to compel RMIT to start negotiating is through an MSD – but it’s very difficult to prove majority support among over 6000 staff. Even through a petition, all casuals on the books at the time majority support is assessed would be included.

The reform needed here is to remove the requirement to show majority support for a renewal of the Agreement. Instead, there should be a statutory requirement on all parties to start bargaining for a new EA, say, no later than three months after the current Agreement has expired. Industry-wide bargaining

This is getting more attention in the reform debate. We need to address this central problem - enterprise bargaining was designed 30 years ago, for an economy that no longer exists.

Employees and unions can only bargain, and take industrial action, for an agreement with a single business or part of a business. That worked fine when we still had many large worksites, like factories, where thousands of employees worked for the same employer.

But businesses in key economic sectors like food production, logistics, warehousing, building management and ‘big box’ retail have hived off large parts of their operations to other entities.

They have used labour hire, supply chains, independent contracting, & the fiction of ‘flexible gig work’ to distance themselves from responsibility for minimum employment standards – and collective bargaining.

So we need to reconfigure bargaining to allow multiemployer agreements that overcome these business models. And if we are going to lift wages, workers will need the boost to bargaining power that comes from being able to negotiate – and strike – across entire industries. That includes in higher education – where an industry-wide approach is adopted to formulating claims to be advanced nationally.

But how much more effective could this be if the union could legally pursue claims against two or more universities in the same bargaining round (e.g. a group of regionally-based universities)?

Multi-employer bargaining might also be useful to deal with: • the creation of new business entities by some universities, that take them out of current agreements. • the many for-profit providers that have emerged in the sector in recent years.

Industry or multi-employer bargaining must be based on the principle that the workers decide the level on which they want to bargain.

The Greens’ 2022 election policy states that: ‘Workers should be free to collectively bargain at whatever level they consider appropriate and with whoever has real control over their work, whether at a workplace, industry, sector or other level.’

This inevitably raises the question – how do you determine the workers’ preferences? This has to be assessed through achievable thresholds of employee support. Rather than always having to prove ‘majority support’, we need to think about – what level of support would show a union has legitimacy from the workforce to bargain on their behalf, for an agreement at the level they want. Across an entire industry, that might only need to be 1000 employees or 10% of the workforce (that’s the threshold to kick-start NZ’s new system of industry-level Fair Pay Agreements).

There should also be another gateway to multi-employer bargaining – based on its necessity to improve the wages and conditions of particular workers in sectors like cleaning, security or child care, where the absence of bargaining has left workers on award or sub-award conditions.

You could access multi-employer bargaining for these workers regardless of whether employee support thresholds have been met, as determined by the FWC.

Industrial action

There’s a lot that needs fixing here – we don’t have a proper right to strike in Australia. Workers need to be able to take political protest action, and to strike outside the confined window of bargaining for a new Agreement, which has been narrowed even further by FWC rulings terminating protected action, e.g. bans on results by the NTEU, because of ‘harm’ caused to students.

The process for taking protected industrial action should also be simplified – the complex ballot requirements provide too many opportunities for employers to oppose industrial action, or slow it down. I’ve heard some unions want to go back to the 1993 IR Reform Act provisions – union simply had to give the employer 3 days’ written notice of proposed industrial action,with no secret ballot requirements. That looks good to me – along with implementing the Greens’ commitment to industrial action rights that are not ‘limited to artificially restricted bargaining periods’.

What’s ahead

Employers are already talking up the need for productivity gains to underpin any changes to the bargaining laws. And they want the Jobs Summit to consider weakening the ‘better off overall test’ for agreement approvals.

Labor needs to hold firm & (this time) not give the business bleating any oxygen. When the Coalition is in government, unions never get a look-in – as we saw with the succession of employer and even Liberal Party appointments to the FWC. The shape of these important reforms – and those to combat insecure & gig work, and return labour hire to its original purpose – will be determined over the next 6 months.

In the meantime, bargaining for NTEU members continues under the current FW Act. This week’s EA at Western Sydney University, including 150 extra permanent positions, shows gains can be won even under these imperfect laws.

But more will be possible under legislation that places workers at the centre of the regulatory system.

Anthony Forsyth is a Distinguished Professor in the Graduate School of Business and Law at RMIT University. He blogs on workplace issues at: https://labourlawdownunder.com.au/