The Arbitration Court ruled to adopt a 40 hour working week for all Australians, as of January 1948. Then ACTU president Percy Clarey told the Age that an increase in production was likely to result from the change, as was seen after the drop in weekly hours down from 48 hours to 44 in 1927.
As historian Rowan Cahill put it, the Australian trade union movement grew out of the campaign for an 8 hour day. And currently, the full time working week is comprised of 38 hours, which was introduced in 1983 by the now defunct Australian Conciliation and Arbitration Commission.
Australian workers now benefit from numerous entitlements, brought about by the work of unions. These include sick days, annual leave, award wages, maternity pay and equal pay for women. But, as recent cuts to penalty rates show, these benefits shouldn’t be taken for granted.
Reigning PM Scott Morrison reckons all Australians are deserving of a “fair go”, except for unemployed people. And it’s safe to say that he and his fellow Liberal colleagues benefited in their earlier days from the conditions that workers and their unions had pushed for.
But, now those in government are no longer concerned with the labour market conditions they once worked under, they’re fixing to not only dismantle the current regime of worker entitlements and benefits, but they’re seeking to substantially weaken the entire trade union movement.
To the benefit of all
“Under the conciliation and arbitration systems that operated throughout the 20th century, unions were central institutional actors,” said Dr Shae McCrystal. “In this role, they worked to establish and maintain a system of fair and reasonable working conditions for all Australian workers.”
“Unions worked for the good of working people,” the Sydney University professor of labour law continued. And they “benefitted from highly developed and sophisticated working conditions that applied to those workers covered by awards irrespective of their status as union members”.
Professor McCrystal has published numerous works on enterprise bargaining and strike action in this country, including the recently published paper Why Is It so Hard to Take Lawful Strike Action in Australia?
With the shift to enterprise bargaining in 1993, the professor explained, the role of unions changed, so that they “act as representatives of their members”. However, in this capacity, the gains one by unions still benefit a broader range of workers, rather “than just their members”.
According to Australian Bureau of Statistics figures, as of August last year, 15 percent of all Australian employees reported being a member of a union in their main job. This was down from a little over 50 percent in the mid-1970s.
“Unions continue to pursue improvements to the modern award system to protect the safety net of conditions that it establishes,” Professor McCrystal told Sydney Criminal Lawyers. “The agreements created apply to all employees covered, not just union members.”
A brief history of industrial law
The Keating government brought in the Industrial Relations Reform Act 1993 (Cth). This legislation established a decentralised system of enterprise bargaining, as an alternative to award wages. The reform bill also introduced a limited legal right to strike and unfair dismissal laws.
Under the system of enterprise bargaining the award was used as a reference point to establish the approval of wage agreements positioned above it. And the Industrial Tribunal of the time had to be satisfied that an agreement didn’t disadvantage employers, as well as employees, prior to approval.
However, ACTU secretary Sally McManus said last year that “enterprise bargaining has stalled and the number of agreements that have been concluded has declined”. Indeed, over the four years ending in January 2018, the number of private sector workers in an agreement fell by 40 percent.
The Howard era saw the introduction of the Work Choices Act 2005 (Cth). This piece of legislation reduced the capacity of workers to bargain collectively and removed the safety net that had underpinned workplace agreements.
The Rudd government stepped in and replaced Work Choices with the Fair Work Act 2009 (Cth), which provides the current industrial law regime in this country. However, under these laws, the ability of workers to carry out meaningful strike action is being stifled.
The narrowing of strike action
“Under the common law, workers and their unions cannot take lawful strike action,” Professor McCrystal explained. “It was not until 1993 that a right to strike was introduced to Australian workers, in the form of the protected industrial action provisions of the relevant federal statute.”
The professor put forth that as “industrial action is unlawful at common law”, protected industrial action is crucial. However, since the right was enshrined in law, the scope of protected action has been consistently eroded via “legislative amendment and restrictive judicial interpretation”.
This has led to a range of restrictions, including the required disclosure of the nature and timings of strikes, a limit on demands, the outlawing of sympathy strikes and the discretion to prohibit protests that affect public services. So, organised strikes can quite easily become unprotected.
“The law is so complex, it would be unwise to attempt to strike without legal advice or assistance, and even then, many unions make mistakes or get it wrong,” Professor McCrystal warned. This is often inadvertent “or because they get caught by technicalities”.
Ensuring wage stagnation
And it’s against this backdrop that the Morrison government just passed the Ensuring Integrity Bill 2019 (Cth) in the lower house. This is a piece of legislation the ACTU has described as “an attack on working people, which has no precedent in the western world”.
If passed by the Senate in late October, the so-called “integrity” laws will ensure that government and other parties can move to have union officials sacked, apply to have unions deregistered, impose outside administrators and prevent union amalgamations.
The government has been spruiking these laws around preventing criminal offenders from running unions. However, with industrial action so restricted, it seems that breaching these laws could be the real aim of the Coalition, which would thus further hinder strike action in this country.
And as Professor McCrystal pointed out, a 2018 Centre for Future Work report by Jim Stanford linked the current record low levels of industrial action in this country to flatlining wages since 2010.
“Without the credible threat of impactful strike action, the position of unions and workers at the bargaining table is undermined,” the professor concluded.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.