Howard's attacks on construction workers must be defeated

Lisbeth Latham

It is expected that during the current session of federal parliament, a range of new anti-union legislation will be introduced by Prime Minister John Howard's Coalition government, including legislation aimed at “reforming” the construction industry. This legislation will be based on the recommendations from the royal commission into the building industry.


The majority of the 212 recommendations in commissioner Terry Cole's report are aimed at protecting the bosses' profits by limiting the ability of workers and their unions to organise and by increasing the ability of the government to take punitive action against militant unions. The recommendations include:

• Establishment of an Australian Building and Construction Commission (ABCC) with powers to investigate and prosecute breaches of law. It would have powers similar to the Australian Competition and Consumer Commission and have the power to enforce the Trade Practices Act against unions that block the ability of companies to operate. The ABCC will offer free legal advice to those who want it. It would also supersede the Office of the Employment Advocate, which would then focus on other industries.
  
• Drafting a Building and Construction Industry Improvement Act, which would override the Workplace Relations Act (WRA) if the two clash.
  
• Increasing fines for violating the WRA, the Building and Construction Industry Improvement Act or the Trades Practices Act to $20,000 for individuals and $100,000 for unions.
  
• Outlawing industry-wide pattern bargaining. In order for enterprise agreements to be registered with the Australian Industrial Relations Commission (AIRC), they would have to be proven to be not part of a pattern bargaining campaign. Unions that conduct pattern bargaining campaigns could face deregistration.
  
• Making unions and individual workers liable for the losses they “cause”.
  
• Disqualifying officials who “engage in unlawful conduct” from holding office.
  
• Giving the ABCC the power to cancel a union official's right of entry to building sites where it is “abused” and making all such visits subject to the ABCC's supervision.
  
• Mandating secret ballots before any industrial action is undertaken.
  
• Limiting unions to two weeks of protected industrial action followed by a three-week “cooling off” period. If industrial action is voluntarily ended prior to the two weeks then the three-week cooling off period must be completed before further action is taken.
  
• Stripping from the National Building and Construction Industry Award (NBCIA) and state building industry awards all allowances except four — a general allowance payable to all workers, a living away from home allowance, a meal allowance and a travelling allowance.
  
• Stripping from the NBCIA any limitations on the time that work can begin, days that can be worked or clauses specifying when rostered days off will be taken.
  
• Limiting the awarding of federal government building contracts to contractors and sub-contractors who adhere to the government's National Code of Practice for the Construction Industry.
  

If implemented, these recommendations would drastically reduce the capacity of construction unions to win and maintain decent conditions of employment for workers in the industry. Banning pattern bargaining would mean that conditions of work would be dependent on the strength of the union on individual building sites and create large variations in employment practices between sites.

The Master Builders Association's support for almost all the recommendations demonstrates that they are biased in favour of the employers. The MBA only has a few small quibbles with the recommendations. For instance, the MBA argues that the ABCC should be empowered to initiate and conduct civil litigation against unions on behalf of builders rather than simply give advice on legal action. It also opposes the recommendation that the AIRC set a maximum of overtime hours to be worked per week.

Senate
The Howard government is hoping to get legislation incorporating these recommendations approved by the Senate, using the argument that greater powers are needed to “re-establish the rule of law” on building sites because of the royal commission's finding of 392 cases of alleged unlawful conduct. In nearly all of the cited cases, however, union members and officials had attempted to enter building sites to hold stop-work meetings, seek strike pay or seek to ensure that all workers on a site were union members.

It is in the interest of all workers to stop the Howard government's attack on the construction unions. If the government is successful with its attack on construction workers, then it will be in a far stronger and more confident position to attack other workers — it could move to have the construction industry laws extended to all other industries to “ensure uniformity and consistency” in the industrial relations system.

Importantly, Howard and workplace relations minister Tony Abbott know that if the construction industry legislation passes in the Senate, it will be harder for the Construction, Forestry, Mining and Energy Union (CFMEU) to provide solidarity with other unions under attack, such as it did during the 1998 waterfront dispute.

During the campaigns against the WRA in 1996 and the “second wave” of Howard government industrial relations legislation in 1999, the ACTU focused on lobbying the opposition parties in the Senate, particularly the Australian Democrats, to block the legislation. This approach failed when the Democrats did a deal with the Howard government in 1996 to pass the WRA.

Although the government does not have a majority in the Senate, it would be dangerous to rely on this to block the anti-union legislation. Since 1996, Howard has succeeded in getting most of his government's major pieces of legislation through the Senate. On the great majority of legislative bills, the independents, the Democrats and the ALP have given the government the numbers to pass particular pieces of legislation.

Democrats
When Green Left Weekly approached the Democrats and independent senator Meg Lees for comments about the government's intention to introduce legislation restricting the industrial rights of construction workers, they declined to comment until the exact details of the legislation have been provided by the government.

Although the government hasn't produced the exact details of its legislation, it has made it crystal clear that it intends to drastically reduce the ability of construction workers and their unions to fight for improvements in their working conditions and wages.

In a number of public statements the Democrats have indicated that they support some of the recommendations of the Cole commission. In an address to the MBA in Queensland on May 22, Democrats' leader Andrew Bartlett argued that his party sees the “restoration of law in the construction industry as a key outcome”. To achieve this, Bartlett argued for the introduction of private-sector whistleblower legislation to enable individuals to make anonymous allegations of misconduct, and ensure that unions are made responsible for the “unlawful” conduct of officials and members.

There are a number of problems with the Bartlett's approach. Firstly, whistleblower legislation would reproduce the procedures of the royal commission where allegations were made against unions without any opportunity for unions to test the truth of the allegations.

Secondly, the Democrats' approach is to ensure that no violations of the WRA occur, regardless of why they occur. Within the construction industry, like all industries, employers are constantly devising ways to increase profits — by driving workers to work faster or for excessive hours, by failing to pay appropriate wage levels or entitlements, and by taking shortcuts around occupational health and safety.

In order to fight these attacks on working conditions it is necessary for unions to identify them by gaining entry to work sites and accessing relevant documentation, involving members in stop-work meetings to determine a course of action and then by taking industrial action.

The WRA deems almost all industrial action to be illegal, so it is almost impossible for workers to defend their rights without taking “illegal” industrial action.

The Cole commission found that 230 of the 392 findings of “unlawful” conduct committed by the construction unions had been committed by the Western Australian branch of the CFMEU. But the overwhelming majority of these were for union officials insisting on their right to enter building sites and visit their members despite WA industrial legislation banning the right of entry. This was an undemocratic law which had to be broken if the union was to organise its members.

Bartlett's speech to the MBA indicates that his call for harmony on building sites is really a call for unions to give up industrial action. Although he did make some small demands on employers regarding health and safety and the payment of entitlements, they are demands which cannot be achieved without strong unions that are prepared to take action to ensure employers' compliance.

Bartlett's comments to the MBA indicate that it would be a serious mistake for unions to rely simply on lobbying the Democrats to block the government's anti-union legislation in the Senate.

It is much more likely that the Senate would block the legislation, or the government not introduce it, if the building industry bosses know they will face a massive national campaign of strikes, workplace bans and public rallies organised by the entire union movement if the government attempts to put the Cole commission's recommendations into legislation.

In 1995, a united campaign of sustained industrial action and street protests by the union movement in Western Australia stopped the state Coalition government's proposed “second wave” of attacks on union rights. This campaign included rolling strikes and 24-hour stoppages.
However, in 1997, when the WA Coalition government again tried to put the measures through parliament, the trade unions failed to continue the campaign and the government was able to get the legislation passed.

While the construction unions in Western Australia and Victoria have mobilised against the Cole commission, it is vital that the entire union movement commit itself to take sustained action to defeat the Howard government planned attack on the construction unions.

Originally published in Green Left Weekly #550

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School teachers announce strike action

Lisbeth Latham

PERTH — On August 11, the Australian Education Union's Western Australian branch executive announced that a half-day strike is to be held on September 17. The strike will intensify the AEU's industrial campaign to win a new certified agreement.

The WA Labor government has offered a 9% pay increase each year, for the next three years. This is short of the AEU's claim for 30% raise over the life of the agreement.

AEU WA president Pat Byrne described the offer as an "insult to teachers". It fails to address issues of "workload, teacher supply especially in country area, it does nothing to attract and retain teachers. It barely meets cost of living increases", Byrne said.

The AEU's log of claims focuses on reducing teachers' workloads, particularly non-teaching duties, to allow more teaching time. The union has imposed a series of work bans on non-teaching activities since August 7.

From Green Left Weekly #550

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Unreasonable hours: Why we work longer and harder

Lisbeth Latham
On July 11, Workplace Standards Tasmania delivered a notice to Tasmanian mining companies, directing them to end their dangerous work patterns. The problem was not equipment or training, it was working hours so long that workers’ lives were endangered. This is just the extreme tip of a general trend: most Australians are now working longer and harder.


The notice was a response to the “Struggle for Time” report prepared by the Australian Centre for Industrial Relations Research and Training (ACIRRT), in collaboration with the Centre for Sleep Research. The report found that workers in the Tasmanian mining industry work, on average, between 42 and 56 hours per week, with some working as many as 70 hours in a week.

Since the 1980s, the proportion of all employees working more than 40 hours a week has increased from 31.0% in 1998 to 37.4% in 2001. In 2000, 2.2 million workers — almost half of all full-time workers — worked more than 40 hours. The average weekly hours worked by full-time workers has increased from 38.2 in 1982 to 41.3 in 2001.

At the same time, there has been an increase in the number of workers in Australia who are employed on a part-time basis. Between 1981 and 2000, the proportion of workers working less than 35 hours a week increased from 16% to 26%.

Working longer hours greatly increases the likelihood of fatigue. High levels of fatigue have similar effects on concentration and coordination as high blood-alcohol levels.

This is often exacerbated by other factors. Manual work tends to be more fatiguing, and lack of proper sleep means workers get more fatigued, faster. Humans sleep more easily at night than during the day. Added to this, we get fatigued faster at particular times, especially between 2am and 7am. Longer working shifts also often adds to stress, because of the reduced time available for everything else.

This means that the extended periods of night shift that are increasingly common in manual jobs, such as in the mining, manufacturing and maritime industries, are making worker fatigue much worse.

In a review of different shift rosters in the Tasmanian mining industry, Sally Ferguson from the Centre for Sleep Research found that at some sites workers would have been experiencing dangerously high fatigue by the second shift of their roster, and that in the majority of rosters there were periods where it could be expected that the work force would be highly fatigued.

Whose fault?
It is often assumed that working hours are getting longer because workers want higher wages. However, it is wrong to place responsibility for longer hours with working people. Overtime is necessary because employers do not hire sufficient workers to get the work done in standard hours. It is easier, and, as overtime payments are wound back, increasingly cheaper, to employ existing workers for longer hours.

While many workers do rely on overtime to ensure a liveable wage, for many workers this is not the reason they “choose” to work such long hours. For mine workers, the standard hours of work — which include shifts of between 10.5 and 12 hours — are already excessive, with overtime pushing working time up to peaks of 70 hours in a single week.

In its “Reasonable Hours” submission to the Australian Industrial Relations Commission, the Australian Council of Trade Unions (ACTU) estimated that, in 2000, only 38.4% of those workers regularly working overtime received overtime payments, down from 40.1% in 1993.

Of the remaining 61.6%, 21.2% had overtime factored in to their salary package, 5.2% could take time off in lieu and a staggering 33.5% simply did unpaid overtime. Unpaid overtime is more prevalent among women workers.

In 2002, employers attempted to vary awards for ACT retail workers, and for Victorian clerical staff, to increase the standard working week to 39 hours, including one hour of overtime and incorporating this into the weekly wage. Additional overtime would not be paid until the end of the year, when total overtime hours worked (including the standard one hour a week) would be tabulated. If the total came to more than 48 hours, then this additional time would be paid as a lump sum.

Work rich, work poor
The trend towards longer working hours may be masking some of the impact of falling real wages, which is felt not by those who are working too much, but by those who are working too little.

The average adult weekly wage (before tax) of all workers in 2002 was $702.50, $229 less than the average of full-time workers. For women, the average wage was $550.10, $259.40 less than the average of women working full-time. This huge gap reflects that increasingly women have either low pay and part-time work or more pay but with ever longer hours. As a framework for deciding how to balance work and family, this “choice” sucks.

The ACTU claim for reasonable working hours began before the Australian Industrial Relations Commission in 2001, and the decision was handed down on July 22.

The ACTU had requested the setting of reasonable hours of work; reasonable overtime; and paid breaks after extreme working hours. If the test case was granted, these could be inserted into awards where appropriate.

While in many countries, excessive working hours, often defined at 70 hours a week, are illegal, the ACTU did not request this. Instead, it argued that employers should be forced to provide workers who work excessive hours with sufficent paid time off to recuperate.

The commission rejected this, pointing out that it was inconsistent to argue that these hours were dangerous and then ask for provisions to be made for working them. It also argued that this may “reward” workers who worked excessive hours. It did not, however, make such hours illegal.

The commission did rule that workers had the right to refuse overtime on several grounds, including a risk to health or safety due to an excessive number of working hours, personal circumstances including family responsibilities, lack of adequate notice from the employer and an inadequate need for the work.

However, while a step forward, the decision still places the onus on workers to prove that overtime is unreasonable, and relies on assertive, confident workers.

An alternative approach to reducing hours is included in the enterprise agreement for Australian Workers Union maintenance workers at the Kwinana BP oil refinery in WA.

In this agreement, adopted in July, the workers have reinforced their 35-hour work week with a 32% wage rise over the next 3.5 years. The workers also won the a provision that requires the company to hire more workers if the average overtime worked by workers is greater than 12 hours per year, per worker.

While the circumstances of the oil industry, with its high profits and stable working conditions, made this a good place for a test case, this sort of example is a good one. It will take struggle on the ground to reverse the trend of bosses making workers work longer and harder to survive.

Originally published in Green Left Weekly #548

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