On 18 March 2021, the Fair Work Amendment (‘Supporting Australia’s Economic Recovery’) Bill passed the Senate in a version dramatically stripped-down from what had originally been contemplated by both the Morrison Government and their friends in big business.
The ACTU called this a win for workers, while at the same time acknowledging that the casual worker provisions that got up were a defeat. They celebrated:
“BREAKING: The union movement has successfully prevented the worst elements of the Morrison Government’s proposed anti-worker “Omnibus Bill”.
“Thanks to the hard work of tens of thousands of union members and supporters, of the five elements of these dangerous, extreme workplace laws, only one element was passed.” (Australian Unions email blast, 18 March 2021)
From the middle of last year, the ACTU participated in closed-door discussions with big business and Christian Porter, the then Attorney-General, Industrial Relations Minister, and sponsor of the Bill. The mass media had been reporting on the ACTU’s daily conversations with Porter (“Pandemic reunites a not-so-odd couple”, Sydney Morning Herald June 15, 2020). The ACTU strategy rested on maintaining a seat at a table with Australia’s biggest capitalists, and their preferred agent, the Liberal government, in order to lessen the blow against us.
Amongst the ACTU’s surrenders at this table was renegotiating a weakening of the Better Off Overall Test (BOOT). Behind confidentiality agreements, the ACTU - with its biggest affiliate in tow, the Shop Distributive and Allied Employees Association (SDA), a notorious yellow union - tried to revive a strategy of selling conditions for wages and a seat at the table.
This has been the SDA’s tried and true method of “unionism” for decades, depriving workers of hundreds and thousands of dollars in wages and conditions such as penalty rates and leave entitlements. It was this strategy that was exposed in Hart v Coles, run by the now Secretary of the Retail and Fast Food Workers Union (RAFFWU), that resulted in the Fair Work Commission applying the BOOT test as legislated. Those actual wins are now being undermined by these confidential negotiations between some unions, the government and big business.
The ACTU expressed its outrage when it was clear that the government and big business were going to put into the Bill whatever it was they wanted anyway, irrespective of the confidential negotiations. They lamented that their negotiating partners had not played fairly and in good faith – as though governments and business had never betrayed us before. What is far more staggering is that the ACTU believed the negotiations to be in good faith to begin with, and gambled with the rights and welfare of the workers’ movement on a capitalist promise of fair play.
The ACTU claims a victory in relation to the Omnibus Bill. But four of the worst elements of the bill weren’t prevented; they were taken off the table for now.Calling the Government’s retreat from the “worst elements” of the Bill a “victory” is misleading.
What the Government did was remove a number of anti-worker provisions, because they had no prospect of success – at this time.
“The ACTU claims a victory in relation to the Omnibus Bill. But four of the worst elements of the bill weren’t prevented; they were taken off the table for now.”
The ancient Chinese military strategist Sun Tzu once said:
“If he can fight, he advances and takes the offensive; if he cannot fight, he retreats and remains on the defensive. He who knows whether it is right to take the offensive or the defensive, will invariably conquer.”
The Government has taken the defensive. Whether they will invariably conquer is a matter of what we workers do next.
What was the one element that got up?
The provisions to do with casual workers succeeded in the stripped-down Omnibus Bill, entrenching precarious employment across the economy.
In our 11 February 2021 edition, we wrote:
“The Bill seeks to retrospectively unwind the WorkPak vs Rossato decision regarding the entitlement of workers that have been designated by their employer as casual. The decision made it clear that an employer labelling a worker as “casual” did not remove that workers’ entitlement to leave as provided by the National Employment Standards within the FWA. The Morrison government has actively opposed this decision, including participating in the employer’s appeals against it.”
The ACTU summed it up like this:
“The negative element that passed includes a new, worse, definition of casual employment, and reduced liability for employers who deliberately misclassify casual workers.
“In effect, employers will have even more power to designate a worker as a ‘casual’, with fewer rights than permanent employees, even if the work performed is regular and permanent.”
Casualisation permeates every industry across the entire economy not just young people in retail or hospitality. Increasingly they are nurses, teachers, construction workers, truck drivers, and others – it is the capitalist preferred model of employment. That this provision got up is not merely a matter of ‘one out of five ain’t bad’. The success of this provision is a serious defeat for workers and the workers’ movement.
Why wasn’t there a campaign?
Many unions actually say that there was a campaign. A social media campaign. Petitions, letter writing, phone calls to the cross bench, and making public statements of moral outrage. But what the union movement did not do was organise.
What is organising and what should we have done instead?
The ACTU, through the local Trades and Labour Councils and the affiliate unions, could have organised mass meetings of workers to explain the Omnibus Bill and the dangers it presented to us, our working lives, our pay and conditions and the risks to our ability to organise in our unions.
They could have organised industry group meetings, with our union representatives and leaders, to discuss what kind of strategies we could take – across industries, within industries and within our workplaces to apply maximum economic pressure to defeat the legislation.
We could have been given opportunities to discuss and debate in these mass meetings, what strategies and actions we were willing to take, and what strategies we were not willing to take.
We could have had mass rallies, even with social distancing, around demands that actually matter to our lives.
We could have been supported to take industrial action, in strategic industries, and we could have co-ordinated our support for those strategic industries through solidarity actions, solidarity walk offs, and solidarity fundraising – because in relation to the Omnibus Bill, it is clear that all workers are actually in it together.
These actions would have strengthened workers’ power, strengthened the labour movement, and built the kind of fighting union movement that could actually achieve a defeat in real terms, and perhaps even win back some of our wages and conditions that have been lost during years of retreating when faced with employers’ offensives.
Sun Tzu also said:
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle”
It is time for the workers movement to know our enemy and to know ourselves – and then we will not fear the coming battles.
If you don’t fight you lose.
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