The industrial laws of Australia are broken and they must be fixed

There is currently an extreme imbalance of power between employers and employees with bosses holding the whip hand in all aspects of negotiation and bargaining. This situation contributes to the growing inequality for the majority of Australian workers and their families.

Our Union is working alongside other unions and the ACTU through the Change the Rules campaign and members can expect to see much more of this catchphrase in coming months. Teachers and support staff in Catholic and independent schools are not immune to the impact of these broken rules and for our members employed in the 11 Catholic dioceses this was their lived experience during 2017.

There are numerous aspects to these broken rules. Employers can simply decide not to bargain with employees or seek to terminate existing agreements and commence bargaining with a blank canvas with previously hard won conditions abolished.

Although this was not the intention of the Fair Work Act which established very basic Modern Awards as a “safety net” and encouraged collective bargaining as a vehicle for improved wages and conditions, it has become the norm. The number of enterprise agreements approved by the Fair Work Commission (FWC) is in decline and employers use legalistic interventions to frustrate agreement making.

In NSW and the ACT Catholic employers determined to offer employees a Multi-Employer Enterprise Agreement (MEA) last year in a bid to deny staff access to any rights to take protected industrial action. Months were spent in court before the FWC ruled they were not eligible to offer this type of Agreement and Protected Industrial Action was available to workers.

In January the Rail, Bus and Tram Union (RBTU) followed the onerous industrial action laws to the letter, balloting their members who overwhelmingly supported a 24 hour strike only to have their right to strike challenged by the NSW Government.

Despite their strike being “legal” under the law the FWC declared that proceeding with the action would be “illegal” and the Union was prevented from taking their protected industrial action for six weeks. ACTU Secretary, Sally McManus said of this decision that it demonstrated that the right to strike in Australia was “nearly dead”.

However ballots are not necessary for employers to take industrial action and 175 workers at the Glencore mine in Queensland were “locked out” of the worksite for seven months when they rejected a substandard EA offer from their employer who then shut up shop and made an application to terminate their existing EA. There was no movement from the FWC to order the employer to delay taking that action, no order on the employer to stop their industrial action.

The IEU VicTas Branch recently experienced how employers can turn bargaining into a complete farce at a small independent school. The Fair Work Act contains a provision whereby if a majority of employees ask to bargain for an EA the employers is required to bargain. The Union organised a petition of the schools employees where a majority supported bargaining. However the school opposed the application in the FWC.

The FWC asked the Australian Electoral Commission (AEC) to run a ballot of the staff but the school frustrated that process by adding the names of 45 casuals many of whom had not worked there for many years. By creating a bigger roll of prospective voters many of whom had no relationship with the school the employer was able to avoid a 50% vote in favour of bargaining. Existing employees are prohibited from pursuing a collective agreement.

It’s time to change these broken rules and as a collective, we can do that.

John Quessy