Solidarity

You might have seen this Government advertisement (pdf) in the newspaper, or in some of the commentary since. I most recently saw it mentioned as the hook for a David Peetz column in The Courier-Mail. He points out the hypocrisy involved in encouraging small business to consider collective bargaining in order to “to be on a more equal footing with larger business when it comes to negotiating”, while pushing individual contracts on workers through WorkChoices.

But there’s another aspect to this story that hasn’t been widely reported. The Government was apparently worried that businesses like independent contractors in the construction industry, or owner-drivers in the transport industry, might turn to organisations with extensive experience in negotiating collective bargains — trade unions — so the law was framed like this:

s 93AB(9)    A notice given by a corporation under subsection (1) is not a valid collective bargaining notice if it is given, on behalf of the corporation, by:

(a) a trade union; or

(b) an officer of a trade union; or

(c) a person acting on the direction of a trade union.

This provision was considered by Dr Shae McCrystal in an article for the Australian Journal of Labour Law entitled, “Collective Bargaining by Independent Contractors: Challenges from Labour Law”. Although McCrystal sees some scope for unions to get around the provision, she is in little doubt that it was included for ideological, anti-union reasons:

Of particular interest is the proposal that would have automatically invalidated a collective bargaining notice where it had been lodged on behalf of the parties by a trade union, an officer of a trade union or a person acting on the direction of a trade union. The proposed restriction would appear to have excluded trade unions acting as agents for contractor workers in the preparation and negotiation of collective agreements. The rationale for the inclusion of this restriction in the Amendment Bill is unclear. The Dawson Report, which recommended the introduction of the collective bargaining notice provisions, did not recommend the inclusion of the restriction and no convincing justification has been offered by the Federal Government.

… The provision would not have restricted the use of employer or industry associations as agents in collective bargaining, only trade unions. … The restriction appears to have been, in the words of one member of parliament, ‘a Pavlovian response from the government’ to the word ‘union’. …

… [I]t is unlikely that collectives of contractor workers would be singled out by the ACCC for ‘objection’ under the new system. … However, this may not be true for contractor workers who seek the assistance of a trade union in running a collective bargaining campaign. … [T]heir involvement could result in more scrupulous attention from the ACCC, especially in the form of objection notices. The Federal Government has made no secret of its anti-trade union agenda. Should this provision remain in any future amendments to the TPA, it is possible that the ACCC might be requested to look more closely at collective bargaining notices where there was trade union involvement.

To understand what is happening here, we need to consider the push by employers to turn their workers into so-called independent contractors in order to sidestep employment law. It is based on the pretence that a bloke with a ute and a few tools can negotiate on an even footing with a multinational construction firm.

By passing this amendment to the Trade Practices Act to allow contractors to engage in collective bargaining, the Government has admitted that the relationship between big business and contractors is not equal at all. It is one that is imbalanced and susceptible to exploitation, and collective bargaining is the best way to protect these workers’ interests. But the Government can not accept that trade unions are legitimate representative bodies for these workers.

This agenda is being pushed by employer groups and industrial relations consultants, who operate behind a facade of concern for workers. They do not really represent workers’ interests. Take the Owner Drivers Association for example. It does not disclose how many members it has, or what proportion of those are actually owner drivers. Its spokesmen are both industry lobbyists, and media reports suggest that courier companies (the owner drivers’ bosses) are funding the organisation to the tune of $100 000.

The ODA’s sole reason for existence is to undermine the Transport Workers Union, which represents over 15 000 owner drivers. The new legislation is part of the same assault on the TWU (and other unions that represent independent contractors, like the CFMEU and the AMWU), providing as it does another avenue for big companies to attack the TWU’s involvement in collective bargaining by owner drivers. As Shae McCrystal speculated:

The Federal Government has made no secret of its anti-trade union agenda. … [I]t is possible that the ACCC might be requested to look more closely at collective bargaining notices where there was trade union involvement.

And so, a reform that purports to improve collective bargaining by small businesses (including independent contractors) is a trojan horse for yet more union-busting by the Federal Government.