Solidarity

I had planned to take a break from blogging on Tristar for a while, but when I read Joe Hockey’s latest comments I had to post a response — they are simply wrong. The Minister reportedly told ABC radio that “Tristar and Work Choices are not on the same plate, they are different issues.” Wrong, wrong, wrong.

Strike one

The basis for his comment seems to be that the AIRC terminated the Tristar EBA “under the old laws”. That’s partly true — the decision was made under WorkChoices, but because it was an old EBA, it was made under the transitional arrangements. But the more important question is how WorkChoices works when the transitional period doesn’t apply — in other words, when the full-blown WorkChoices has effect.

As I pointed out in earlier posts, under the new laws, the AIRC isn’t involved at all. The boss simply declares the EBA terminated, waits 90 days, and then it’s done. No Commission hearing, no public interest test, just a unilateral action by the boss.

And on top of that, employees affected by a unilateral termination of agreement will be knocked down to the so-called Australian Fair Pay and Conditions Standard — the minimum wage. The pre-WorkChoices legislation said they were caught by the relevant award, which is usually much higher than the minimum pay and conditions set out by the new AFPCS. So WorkChoices tips the balance towards the bosses in that way, too.

Strike two

The exception to this fall to the minimum conditions is redundancy entitlements. As part of WorkChoices, they now extend for 12 months after an agreement is terminated. The Government says this is enough to protect employees, but as we have seen, Tristar is more than willing to sit tight and wait until the protection expires. It’s not really a protection, it’s just a speed bump.

And perversely, this so-called protection was one of the reasons the AIRC cited in its decision to allow Tristar to terminate its EBA. In fact, according to Senior Deputy President Marsh this was the fundamental reason why there was no public interest in maintaining the agreement:

The overwhelming concern of the unions for their members has been met with the passing of the amendment. There is no public interest consideration that would prevent the termination of the agreement due to the potential loss of entitlements to accrued redundancy pay given the protection now guaranteed for a 12 month period.

In other words, this WorkChoices amendment, while claiming to protect workers in Tristar’s position, actually contributed to their EBA’s termination. If it was a serious attempt to protect redundancy entitlements, then it backfired spectacularly.

Strike three

But the most important way Hockey is wrong to deny a link between WorkChoices and the Tristar case relates to the OWS prosecution. The watchdog will have a tougher time proving its case, because WorkChoices deliberately increased the legal threshold for successful discrimination cases:

The action is being taken under the “freedom of association” provisions of the workplace laws, which have been tightened under WorkChoices to favour employers. The watchdog now has to prove the workers’ loss of entitlements was the “sole or dominant” reason for Tristar’s actions, rather than just being one of the reasons.

… Flinders University law professor Andrew Stewart remained sceptical, and suggested the Government wanted to be seen to be doing something. “It is still not assured that the Office of Workplace Services will succeed,” he said. “And their task undoubtedly has been made harder than it would previously have been by the Government’s own WorkChoices amendment.”

The OWS prosecution is not only pushing against the established, expert view of the law (almost everyone, including John Howard, agrees that Tristar has acted legally, if immorally) — it is also pushing against a WorkChoices change that makes it harder for them to prove their case. WorkChoices specifically strengthens the position of companies like Tristar.

Three strikes, Joe.