In truth, IR did not feature very much in the campaign. The parties’ positions have had a lot of publicity over the last couple of years, and voters who considered workers’ rights to be the key issue already knew where their vote would be headed. But it did pop up a few times.

Union-hater embarrasses Liberals

The most entertaining campaign incident was the Lindsay pamphlet scam, in which a Labor sting operation caught senior Liberals stirring up race hatred by distributing false junk mail. What does this have to do with IR? Well, outgoing MP Jackie Kelly defended her husband’s actions by saying, “He hates the unions with a passion, my husband.” We know, Jackie — so much so that he gets violent. Today’s Financial Review reminds us that

Kelly’s husband, Gary Clark, came under fire last year for assaulting a union official and breaking his video camera…

It’s nice to see him get his comeuppance, and I hope the AFP prosecutes him for his latest offence.

Court keeps Howard’s IR plot secret

This weblog has been documenting the growing evidence that the Howard Government secretly plans to take its IR laws even further. As Labor points out, a Costello Government would make WorkChoices II a certainty. And there are other IR extremists running for the Liberals who would no doubt push for further changes — like Bob Day, who is one of the brains behind the sham Independent Contractors of Australia and believes the “no-man’s land between zero dollars and the minimum wage” should be abolished.

Remember the Government document called “The Regulation of Workplace Relations current, proposed and future”? The one that was released with the “future” section blacked out? Well, several media organisations started investigating those future plans with a Freedom of Information request for similar documents. They were blocked by a “conclusive certificate” on the grounds that the public has no right to know what the Government’s future IR plans are. Kevin Rudd has pledged to abolish conclusive certificates.

Labor pushes unions away

My last post noted Bob Hawke’s suggestion that Rudd would speak out in favour of the union movement. Unfortunately, that didn’t happen. Sure, he reminded us that it was the unions who took up the fight against James Hardie on behalf of its former employees, but he’s been doing a lot more to keep them away. He booted Joe McDonald from the ALP for the heinous offence of saying John Howard was on his way out. He says the unions will not be rewarded for their success in turning public opinion against WorkChoices, or for their teams of campaign workers in marginal seats.

In that last post, I said that if Rudd didn’t come out in support of the labour movement, “he can expect more voters to follow the Fireys and turn Green.” I was right:

Dean Mighell’s Electrical Trades Union, the Australian Manufacturing Workers Union and several others have donated money to the Greens and advocated voting Green in the Senate.

But the Medical Scientists Association of Victoria has gone a step further in telling its members – pathologists, medical scientists and psychologists – to vote No1 for the Greens in all lower-house seats.

And the polls reflect people’s shift: “The pollster [Newspoll] also has the Greens on seven, an almost doubling over the campaign… The increase has come at the expense of Labor”.

So, how should you vote?

Well, unlike most of the major newspapers I’m not going to encourage you to vote Labor. No, I’m going to go with the Fireys and the MSAV and advocate a vote for the Greens. In the lower house, vote:

1. Greens
2. Labor
3. The rest

In the Senate, vote:

1. Greens (above the line)

This is the surest way to get rid of WorkChoices, to send a clear message to the ALP that it must support the union movement, and to make sure that if Labor does not have a majority in the Senate (as it likely will not) it can negotiate with the Greens instead of Barnaby Joyce and Family First.

Tomorrow night should be fun.

Besides, voters know that the Liberal frontbenches are stuffed full of business lawyers, while union leaders bring a range of skills to the Parliament. In the Financial Review on Wednesday, Steven Scott reported (p14):

He has degrees in mining engineering and economics, had a board seat at a $26 billion super fund and recently negotiated the largest personal injury settlement in Australian legal history.

More than 80 employees worked for his oprganisation which had a turnover of about $10 million and he was the top executive for much longer than most chief executives run large listed companies.

Greg Combet may be public enemy No.1 in the federal government’s campaign against Labor’s union dominated front bench but he has a CV that in some ways could be mistaken for a company executive, raising questions about what skills former union leaders bring to politics.

John Howard even claimed his 90-minute debate flop was worthwhile because it gave him a chance to repeat a ten-second anti-union soundbite. Unfortunately for him, “[t]he Worm appeared to be particularly critical of Mr Howard when industrial relations was discussed”, and went through the roof when Kevin Rudd talked about workplace fairness.

The most recent opinion poll has Labor gaining major ground on the economy, which shows the public is not falling for the “unions are anti-business” scare campaign. And maybe voters want someone to stick up for ordinary workers, anyway. Crikey recently reported that the Australian Election Survey has shown decreasing fears about unions (15.5% in 2004) and increasing fears about business power (27.1%).

The construction industry scare campaign is unravelling, too. The managing director of John Holland, one of the nation’s biggest construction companies, admitted, “Whoever wins, we don’t factor that sort of stuff in. I don’t think the world’s going to end, I don’t think the sky’s going to fall in.” Meanwhile, the Government launched a new YouTube ad about Joe McDonald — on the same day a court vindicated the CFMEU official’s entry onto a construction site to chase unpaid wages and investigate safety concerns.

Of course, the Government will continue to put heat on Kevin Rudd over Labor’s union support, including Joe McDonald’s membership. Yesterday, Bob Hawke said what Rudd should be saying:

Mr Howard’s attack on the unions was “the most disastrously unfair and baseless accusation and propaganda that has ever been used by any leader in the history of Australian politics. I say that deliberately, that’s not exaggeration,” he said.

“Every single Australian is indebted to the Australian trade union movement. How dare this man attack the trade union movement. There is no institution in Australia which has done more to flesh out the concept of a fair go, to give it reality, than the Australian trade union movement.”

Hawke has hinted that Kevin Rudd will “soon speak out” along similar lines. If he doesn’t, he can expect more voters to follow the Fireys and turn Green.

Seriously, if the ALP was in the pockets of the unions, wouldn’t the ACTU guarantee support for Labor’s Senate campaign? Instead, the union movement is verging on support for the Greens, with a generic anti-Government Senate how-to-vote card and support for Greens candidates from individual unions. It is true that the Greens’ IR policy is more consistently pro-worker, and electing Greens candidates to the Senate would help prevent Labor being pressured into cutting deals with the likes of Family First or the Democrats.

The main thing is to ensure that Howard’s Government is not reelected — not only because that would entrench WorkChoices, but also because they have bigger plans. Last year a senior minister, Nick Minchin, revealed there was “still a long way to go” towards abolishing awards and the AIRC. Labor uncovered a secret treasury document called “The Regulation of Workplace Relations current, proposed and future” — the “proposed” section was WorkChoices, and the “future” section was blacked out. And now Joe Hockey has promised that the role of unions in Australia is “essentially over”.

That’s what he thinks.

Update: …and here’s why he’s wrong. Asbestos victim Bernie Banton is angry about Joe Hockey’s attitude:

“Where was Joe Hockey when we were fighting against James Hardie, he was nowhere to be seen?” he said.

“Without their [the union's] support and their absolute total commitment to getting that deal done, we would not have a deal for all those thousands of future victims.”

“We haven’t got the conditions we’ve got today because some nice boss came along and said ‘we like the look of you’.

“We’ve got it through absolutely hard yakka by the union movement and they have stressed all along that that’s what they’re there for.”

The deadline for new enrolments is this Wednesday, 17 October, at 8:00pm, so there isn’t much time.

Don’t assume you are correctly enrolled. Visit the AEC’s Check Your Details page to make absolutely sure you have the chance to vote for workplace rights.

Please make sure you talk to your friends and colleagues about the need to update their enrolment details. We can’t leave anything to chance.

Because there was no basis for attacking the merits of the findings, the research team was criticised for its personal support for unionism. It doesn’t matter that the research was peer-reviewed and partly funded by the Government’s Australian Research Council, or that the academics involved regularly do work for business groups, government, or institutions including the Reserve Bank — there’s reds under the bed.

But when Mercurious put up his post, he couldn’t have known how accurate the headline was. Another report, released yesterday, suggests that WorkChoices has emboldened bosses to sack pregnant women. An hour before it was due to be released, RMIT’s Dr Sara Charlesworth received a phone call from DEWR:

Dr Charlesworth said the officer asked her about the contents of the report before saying, “I have to ask you, have you been a union official? Are you now or have you been a union official?”

“I laughed because I thought it was such an outrageous question,” Dr Charlesworth said. “She said, ‘I know, I’m really sorry, but have you?’.”

The Government has decided that since it win the ball, it will play the man instead. The academics involved, on the other hand, are quite happy to debate their findings. Dr Brigid can Wanrooy put up a guest post at Blogocracy today, and has been answering questions in the comments thread.

When Joe Hockey manages to mumble something about ABS statistics, he gets it dead wrong. First, the ABS said it hasn’t done any analysis of post-WorkChoices AWAs; and second, independent analysis of the existing data disagrees with Hockey’s version:

Professor Alison Preston, from Curtin Business School, says the same bureau data actually supports the findings of the University of Sydney study that low-skilled workers on AWAs earn significantly less on average than those covered by collective agreements. “[Mr] Hockey has recently dismissed data released by the Workplace Research Centre at Sydney University showing that low-skilled workers on collective agreements earned roughly $100 more per week than low-skilled workers on AWAs,” she said.

“The wage gaps uncovered by the Sydney University researchers would be on a par with average wage gaps estimated using official ABS data.”

Professor Preston’s analysis of detailed figures collected in May last year, but not published by the bureau, showed non-managerial workers on federal AWAs earned $76 a week less than their counterparts on collective agreements. For women on AWAs the weekly earnings disadvantage compared with those on collective agreements was around $110.

Of course, if the Government was really serious about ensuring proper academic study of WorkChoices, it wouldn’t be doing everything possible to cover up the raw information. The Workplace Authority’s Barbara Bennett has been flat out lying about the privacy issues involved with releasing information to academics. In the past, the information has been released with personal details blacked out, but that’s all too hard for our new post-WorkChoices regulators:

Ms Bennett defended her decision, saying all AWAs were now lodged electronically, making it more difficult to mask who the parties were.

Asked if the authority should simply print out the agreements and use a black marker to obscure names and addresses, she said, “It isn’t a conspiracy.”

Incompetence, then.

Normal service will return soon. I hope.

In the meantime, check out The Manic Times. Thanks to its ongoing IR coverage, it’s not welcome at the HR Nicholls Society — and I can’t think of a better endorsement.

Kath & Kim: “Bloody Howard”

You’ve surely heard that this week’s episode of Kath & Kim took a shot at WorkChoices and “bloody Howard”. Sophie Black sees it as “proof” that “John Howard’s battlers are deserting him”, and with the polls running the way they have been lately, it’s hard to argue.

ABCC picks on safety rep of the year

Given the dodgy tactics and bias shown by the ABCC, it’s very important that people understand its purpose is to smash the construction unions and weaken building workers — and it doesn’t care if it’s defending dangerous employers. This clip from Constructing Fear shows the story of Brodene Wardley. She was Victoria’s safety representative of the year, but she’s facing jail for standing up for her colleagues.

The full documentary is available for download from the Constructing Fear website.

Cochlear workers denied union agreement

Nearly 300 workers at a Sydney plant manufacturing Cochlear implants have repeatedly called for a union collective agreement, but management keeps trying to force them onto a non-union deal. CEO Chris Roberts admits he is denying the workers their choice:

Dr Roberts concedes that in two company-run ballots and two union-run ballots, 98 per cent of workers rejected Cochlear’s demand for an agreement directly with staff. … “The employees wanted the union to represent them, that’s true,” Dr Roberts said.

Workers’ songs for US Labor Day

Cover Freak put together an interesting collection of union- and work-related songs to celebrate the US holidays. They range from classics like “Which Side are You On?” to the Dead Kennedys doing “Take This Job and Shove It”. Have a listen.

The most recent ABCC prosecution is trumpeted in a press release (pdf). A CFMEU organiser, Adrian McLoughlin, had his entry permit revoked for 2 months — a lot shorter than the 18 months demanded by the ABCC — for some minor, technical breaches of the legislation. But the decision was more interesting because it slammed some of the dodgy tactics used by the ABCC in its union-busting crusade.

What did the CFMEU do wrong?

The ABCC conveniently points to the summary at paragraph 216 of AIRC Senior Deputy President Watson’s decision. But it’s when we go back to the full findings as to each aspect that the real picture emerges. McLoughlin did not disrupt work, and when he did it was because of legitimate health and safety concerns.

Let’s take each of the findings separately.

Yarra Arts site

SDP Watson penalised McLoughlin for “refusing to produce his permit over the course of four site visits to the Yarra Arts site”. Looking at the four visits, there appears to have been no significant disruption to the site. These were essentially technicalities:

• The first breach was on 21 June 2006, at [114]-[117]: “Mr McLoughlin proceeded on to the site, spoke to Mr Johnson and walked around the site with him for 10 minutes. There was no interruption to work on the site.”

• The second was on 6 July 2006, at [119]-[121]: “There was no interruption to the site, save to the extent that Mr McLoughlin had a brief conversation with Mr Johnson.”

• The third was on 11 July 2006, at [122]-[124]: “Mr McLoughlin proceeded on site and talked briefly to Mr Johnson. There was no interruption to work on the site.”

• The fourth was on 3 August 2006, at [128]-[129]: “Mr McLoughlin was requested to attend the site by Mr Johnson … to assist him with OHS matters … There was no disruption to work, other than a delay in a safety walk occasioned by the conversation [about safety] between Mr McLoughlin and Mr Johnson.”

There were many more site visits that did not involve any breaches. The site managers knew who McLoughlin was, and they knew he had a permit. SDP Watson also noted, at [144], that the employers engaged in “a pattern of behaviour directed to creating barriers, whether properly founded or otherwise, to Mr McLoughlin’s entry on site” (my emphasis).

At the same site, McLoughlin also “fail[ed] to accede to requests to adhere to site OHS requirements (or challenge the reasonableness of the requests in the proper way) on 3 August 2006 and 15 August 2006″. This was due to one of the “barriers” raised to his entry. After many visits, he was suddenly told he needed to undertake a site induction (at [131]), which he disputed with the site manager.

On the first visit, McLoughlin took a safety walk and raised a safety concern (at [132]) but “[t]here was no interruption to work on site” (at [133]). On the second visit, McLoughlin said he wanted to hold a meeting about the site OHS representative at 12pm. He was told lunchtime was at 12:30pm and asked not to use the lunchroom, so “Mr McLoughlin conducted a meeting off-site at lunch-time” (at [137]). McLoughlin was clearly trying to minimise disruption at the site.

St Leonard’s site

McLoughlin was also cited for “refusing to produce his permit … [during] the 10 August 2006 attendance at the St Leonard’s site”. Again, there was no disruption (at [184]-[186]: “Mr McLoughlin attended the site at 6.30 a.m., half an hour before the normal start of work. … Mr McLoughlin then conducted a [safety] meeting between 6.45 and 6.55 a.m., which concluded before the normal start time.”

Interestingly, SDP Watson hints that McLoughlin was set up by the ABCC. He had shown his permit on his first visit, and had visited again several times without being asked to show it again. Then the ABCC got involved (at [184] and [212]):

The Inspectors had advised Mr Chambers on 9 August 2006 about asking Mr McLoughlin for his permit on his next visit. … [O]n 10 August 2006, a request was made for the first time for him to produce his permit. Mr McLoughlin’s refusal to do so, whilst wrong, arose in the context of the sudden insistence by Mr Hall on the occupier’s right to have a permit produced, an insistence which seems to have arisen at the suggestion of the ABCC Inspectors.

So McLoughlin was prosecuted even though the employer and the ABCC knew who he was, they knew he had a valid permit, and he didn’t cause any disruption.

CEA Cecil Street site

McLoughlin was also guilty of “interrupting normal work during the course of his 1 June 2006 attendance at the CEA Cecil Street site”. SDP Watson found at [221] that this was “the more serious abuse”, but that “Mr McLoughlin’s actions were motivated not by an intention to disrupt work but to ascertain from employees further information in relation to OHS issues raised with him by the site OHS representative”.

McLoughlin had been called to the site by the safety rep. He told management why he was there, that he would need to speak to some workers about safety concerns, and that he would report back to them after the meeting (which he did). At [95], this was held to have been “a sensible way to proceed, save for the conduct of the meeting in working time rather than during a break.” The workers concerns about excessive overtime were valid ([91]) but “[i]n hindsight” not so urgent as to require a stoppage. On the other hand, SDP Watson notes at [97]:

It is accepted, however, that at the time, Mr McLoughlin was not in a position to fully understand the nature and urgency of the issues without consulting with the employees. In my view, the decision by Mr McLoughlin to hold the OHS meeting at that time was motivated not by a desire to disrupt the site, but by a desire to fully understand and then rectify OHS concerns brought to his attention in broad terms by Mr Battaglene the preceding day.

No significant disruption

You’ll note that the Cecil St meeting was the only incident that caused disruption to a project, and that was only 26 minutes and was due to legitimate safety concerns. The Victorian Building Industry Disputes Panel had already found that “the meeting was an OHS meeting and not an industrial meeting” and “determined that a deduction of 25 minutes pay should occur”, but “[t]he companies deducted four hours pay nonetheless, apparently on the direction of the ABCC” (at [89]). But despite getting the company eight times the money they were entitled to for the meeting, the ABCC still went after McLoughlin for these minor infractions — and demanded, albeit unsuccessfully, that he lose his permit for 18 months!

AIRC slams ABCC’s tactics

Causing unnecessary industrial antagonism

Interestingly, SDP Watson decided he needed to append a “Concluding Observation” to his decision, at [227]-[229]. He noted that the problem here was caused by tension between McLoughlin and the employers, “with each side asserting its rights as understood by them.” In the past, he said, these tensions had been managed by discussing the issues and agreeing protocols for right of entry, if necessary by using the conciliation processes of the Commission. Now, though, employers seemed more interested in asserting their rights for the sake of it:

Whilst occupiers have statutory rights and are entitled to make requests of permit holders … the making of such requests by occupiers in relation to each and every entry is not necessarily conducive to the orderly, responsible and productive exercise of the right of entry. As an example, the insistence on the production of a permit in respect of each and every entry, where the occupier’s representative is aware of the identity of the permit holder and the fact that they hold a permit, whilst legally available, might serve no practical purpose, other than the assertion of statutory rights and insistence on statutory limitations upon permit holders.

This is a pointed reference to the ABCC’s intervention, especially at St Leonard’s. You will recall that the ABCC interfered and encouraged the employer to take an increasingly antagonistic approach. The Senior Deputy President was clearly unimpressed, and was forced to remind the ABCC that the purpose of the legislation was to “facilitate the responsible and orderly exercise of entry rights”, not to force unions to jump through pointless hoops and then prosecute them for minor infractions.

One-sided investigations

At the other end of the judgment, SDP Watson had some more strong words for the ABCC. At [79], he said:

the manner in which the investigation and interviews appear to have been conducted and recorded by ABCC Inspectors was to cast Mr McLoughlin in the worst possible light, rather than to provide full evidence as to the manner in which Mr McLoughlin exercised his right of entry on to sites.

In other words, the ABCC was out to get McLoughlin and the CFMEU, rather than trying to establish the truth of the matter.

There is another interesting aspect to this that was not stated by SDP Watson. At that site, McLoughlin had “identified a number of OHS problems” that were “genuine safety issues, which could cause a serious accident at any time”, including an unprotected “brittle and fragile” asbestos roof (at [161]-[162]).

When workers began to rectify the problems, the site manager threatened to call the ABCC (at [171]). McLoughlin called WorkSafe, who identified nine more safety breaches (at [174]). Then the company made good its threat and the ABCC turned up that afternoon. It was later that day that the inspectors advised the company to play hardball on rights of entry — that is, where the union had validly exercised its rights and identified a range of safety problems, verified by WorkSafe, the ABCC turned up and took the unsafe employer’s side to keep the union out in future!

Verballing witnesses

When SDP Watson said the ABCC had not provided “full evidence”, he meant they had left out material favourable to McLoughlin and exaggerated the unfavourable. They did this by carefully selecting which evidence would be put in the witness statements. In fact, the Senior Deputy President found that the ABCC had verballed its witnesses:

The evidence of the company witnesses brought by Ms Martino relied upon and adopted statements given by them to ABCC Inspectors at various times. The evidence in relation to these statements suggests, to some extent, that the statements as recorded by ABCC Inspectors reflect the particular terms of questions posed by Inspectors rather than a recording of the factual position as conveyed by the witnesses in their own words in evidence in the current matter. Further, there is evidence that some information provided in interviews, which was favourable or neutral to Mr McLoughlin, was not recorded in statements prepared.

This is not how prosecutions are run in civil society. It the police or the DPP were involved in this type of thing, that would be outrageous, but from the ABCC it is even worse. The ABCC is an organisation that has tremendous coercive powers in dealing with witnesses, so its obligation to treat evidence properly and impartially is even stronger. It can’t be trusted — it puts union-busting ahead of workplace safety — and it has been caught out producing misleading evidence in prosecutions. The ABCC should be abolished.

How dare you say we have the money to pay actors more money… fuck you, spreading shit like that. … You and me see each other in the street you better walk the other way, fucker, ’cause I’m going to rip your fucking eyes out.

[See post to listen to audio]

Which reminds me — whatever happened to Liberal councillor Jim Aitken? John Howard said “his position is now being examined”, but that was a while ago. Has that convicted criminal been expelled from the Liberal Party yet, or is John Howard soft on workplace thuggery?

Businesses are using John Howard’s workplace laws to strike a better balance between work and family life, with a dramatic increase in time off allowed so employees can look after sick children or elderly relatives.

Almost 40 per cent of employers surveyed in the most detailed study since the Howard Government introduced Work Choices last year say they have increased the number of “personal carer days” available.

This is misleading. Prior to WorkChoices, workers were entitled to 10 days sick leave. Now, workers are entitled to 10 days personal or carer’s leave — which includes sick leave. In other words, you can now use your sick leave to look after your sick kids (which is a good thing), but the survey doesn’t say whether businesses are going above the bare legal minimum.

And given Norington’s lede is about “strik[ing] a better balance between work and family life”, perhaps it would have been worth reporting what HR practitioners said when they were directly asked about it? From the report (pdf):

62. ‘Operating under Work Choices will improve work-family balance within the organisation over the next three years’ (n = 934):

	Percentage
Strongly agree	5.3
Agree	13.9
Neither agree nor disagree	44.4
Disagree	23.6
Strongly disagree	12.9

Total in agreement: 19.1%. Total who disagree: 36.5%.

Even though the president of the Australian Human Resources Institute told the media “[t]here is some concern looking forward as to whether WorkChoices will be consistent with better work-life balance in the future,” it doesn’t fit The Australian‘s pro-Government agenda, so it’s got to be left out.

Elsewhere: Tim Dunlop has lots more on the survey.