WA nurses battle heats up

Lisbeth Latham

Just three weeks before Western Australia goes to the polls, the nine-month-long nurses dispute over a new certified agreement has come to a head. The Australian Nursing Federation (ANF) is considering an offer made by the Coalition opposition.

The offer matches the Labor government's, which includes a pay rise of 14.7% over three years, but goes further with an additional $50 million in improved working conditions.

Both the state government and the Chamber of Commerce and Industry (CCI) have condemned the Coalition's offer. The CCI fears that the offer could lead to improved working conditions across the industry. In the February 1 West Australian, CCI policy director Bruce Williams said the Liberal Party should not have been drawn into a bidding war by the ANF to settle a pay claim because it would add to the cost of running the health system. He also predicted that such a deal would flow on to the private sector by forcing it to match these conditions in order to attract nursing staff.

UnionsWA secretary Dave Robinson told Australian Associated Press on January 31: "The decision made by [state Coalition leader] Colin Barnett to intrude into the wage bargaining process between public sector employees and their employer ... is highly inappropriate."

Media reports have suggested that the ANF is endorsing a vote for the Coalition. ANF state secretary Mark Olson clarified in the January 28 EBA News: "The ANF has never and will never tell members how to vote in a state election. We have said the Coalition $212 million package will encourage nurses to vote for them." What is not clear, however, is how nurses who are running as independent candidates, primarily in marginal seats under the slogan "Nurses for health", will be directing their preferences.

Whilst the Coalition is offering better conditions to nurses than the government, there is no escaping the Coalition's anti-worker agenda. The election of a Coalition government would impact adversely on future bargaining outcomes for all WA workers.

The Labor government's approach to negotiations with the ANF has been one of open hostility, leading to the current stalemate.

In October 2004, the government insisted that any ballot on its offer ordered by the Australian Industrial Relations Commission (AIRC) be voted on by all nurses rather than only ANF members and that the ANF be prevented from commenting on the offer.

In November, the government applied to have the ANF's bargaining period suspended, which was granted by the AIRC in December in order to force the ANF into arbitration. Following the ANF's refusal to accept the offer, the government cut the union out of negotiations by conducting a ballot of all nurses offering a non-union agreement, in which 70% of nurses rejected the government's offer.

The ANF has not been the only union targeted by the government. In 2003, during both the State School Teachers Union (SSTU) and Civil Service Association (CSA) enterprise bargaining campaigns it adopted hostile negotiating tactics, including threats to suspend bargaining periods. Labor MPs crossed a CSA picket of parliament and the government ran a costly two-page advertisement in the West Australian to publicise its offer to teachers while in a conciliation process.

In November 2004 the ANF disaffiliated from UnionsWA, which, according to the November 12 West Australian, was due to its "failure to support the ANF in its battles against the state government over pay and other issues ... and its failure to take the fight up to the government on key issues such as workers' compensation".

UnionsWA and other public sector unions have challenged the Coalition to similarly improve the working conditions of all workers in the public sector. They have also raised concerns over the effect of the agreement on the ALP's electoral prospects in the February 26 poll. UnionsWA secretary Dave Robinson told the Australian on January 28: "Apart from being a Faustian pact, I think [the agreement] is potentially damaging to Labor."

However, the ALP government's hostile attitude to public servants reflects its commitment to a neoliberal agenda, exercising fiscal "responsibility" by limiting spending on social services, pay and conditions and instead heavily subsidising business development. These policies have only served to further alienate the ALP from working people.

Without a strong and united labour movement that is willing to fight for the interests of workers over and above the interests of any political party, it should come as no surprise that some unions will seek to negotiate with and support whichever party they think will best answer their immediate demands.

In the lead-up to the state election, the union movement and the wider community need to apply maximum political pressure on the ALP government to support the nurses' claim. It is this sort of solidarity and action that can force the government to make a just settlement with the nurses.

At the same time it would be a political mistake for nurses to support the election of a Coalition government. Workers will already have a major battle on their hands to defeat the new wave of anti-worker legislation that PM John Howard's Coalition government has flagged. This fight will be made even harder for WA workers — including nurses — if the Coalition wins the state election on February 26.

From Green Left Weekly #614.

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Electrolux Decision must be fought

Lisbeth Latham

The September 2 High Court's Electrolux decision has signalled a serious assault on the right of workers to organize and strike.

In a six-to-one decision, the High Court ruled that bargaining-agent fees could not be included in an enterprise agreement as this “does not pertain to the employer-employee relationship” and is thus in violation of Section 170LI of the Workplace Relations Act (WRA).


Bargaining-agent fees are levies paid to the union by non-union members to recognise gains the union has won for all workers in the industry.

The immediate effect of the High Court's ruling is that industrial action undertaken against Electrolux by unions seeking enterprise agreements that included bargaining fees is now deemed not to have been “protected action”, leaving the unions and their members open to be sued for legal damages by Electrolux.

However, as bargaining agent fees had already been banned by the Coalition government's June 2002 amendments to the WRA, the significance of the decision broke the previous interpretation of the WRA by both the Federal Court and the Australian Industrial Relations Commission (AIRC).

The previous interpretation had been that enterprise agreements could contain some “non-pertaining” items as long as the whole agreement could be characterised as pertaining to the relationship between employer and employees. The September 2 ruling calls into question the inclusion of a wide range of provisions in enterprise agreements, including automatic deduction of union dues from workers' pay, entitlements of union delegates and trade union to training leave, encouragement/facilitation of union membership and the right of union officials to enter workplaces.

The court's decision means that industrial action taken to support a claim that includes non-pertaining issues cannot be considered protected action.

The decision has caused considerable confusion and uncertainty as it calls into doubt the certification of thousands of EAS, including those already certified by the AIRC. Adding to this confusion and uncertainty has been the threat by companies such as Wesfarmers in Western Australia to seek legal damages for past industrial action that they argue was not protected action in the light of the High Court's ruling.

The uncertainty over allowable clauses in enterprise agreements has been partially allayed with the first test case of the Electrolux decision in the AIRC, on the agreement between Victorian butter manufacturer K.L. Ballantyne and the National Union of Workers. On October 25, AIRC deputy president Iain Ross refused to certify the agreement, arguing that payroll deductions of union fees did not pertain to the employer-employee relationship.

However, Ross's ruling allows clauses relating to prohibitions on the use of Australian Workplace Agreements, trade union training leave, right of workplace entry for union officials and paid union meeting provisions, union picnic days, union access to time and wages records and limitations on the use of contractors and casuals to be included in agreements.

While the K.L Ballantyne decision signals that many agreements can now be certified, unions continue to face challenges. How to protect those clauses that are viewed as not-pertaining is still an issue.

The re-elected federal Coalition government's next wave of industrial relations legislation is likely to include measures reinforcing the High Court's Electrolux decision. Any union strategy that delays challenging attacks on workers' rights can only undermine the capacity of unions to fight back and increase the Coalition's confidence to attack workers.

Originally published in Green Left Weekly #605

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Andrews plans new wave of attacks on unions

Lisbeth Latham

On November 6, federal Coalition workplace relations minister Neil Andrews introduced a new raft of anti-union legislation in federal parliament.

The federal government's Building and Construction Industry Improvement Bill 2003, and its associated Building and Construction Industry Improvement (Consequential and Transitional) Bill 2003 were both read for a second time. In addition, the Workplace Relations Amendment (Choice of Award Coverage) Bill and a revised version of the Workplace Relations Amendment (Termination of Employment) Bill 2002 were reintroduced into parliament. The new Workplace Relations Amendment (Better Bargaining) Bill was introduced into parliament for the first time.


These new pieces of legislation are central to the Howard government's new assault on the ability of workers and their unions to organise to defend their existing wages and working conditions and to fight for improvements.

The employment termination bill has three aims. The first is to continue the government's attempt to exempt “small business” from unfair dismissal legislation, reducing job security and protection for workers employed by businesses that have fewer than 20 employees. Under the bill, such workers will need to have been employed for six months before having access to any unfair dismissal provisions.

The bill will allow the Australian Industrial Relations Commission (AIRC) to deal with cases without a hearing, and to halve the maximum compensation that can be awarded to unfairly dismissed workers.

The bill also limits access to unfair dismissal entitlements for all workers — where redundancies are occurring in a workplace, there will be no access to unfair dismissal provisions. If workers find alternative work after being unfairly dismissed, the amount of compensation will be deducted from any back-pay order by the commission.

Most significantly, if passed, the bill will expand the number of workers covered by federal legislation, using the federal government's corporations' power, to include all those workers who are employed by incorporated companies. This represents approximately 85% of Australian workers, up from the 50% or four million workers currently covered.

Workers shifted to the federal system will lose their access to state legislation. If passed, the bill will strengthen the federal government's plan to create a single nation-wide industrial relations system.

The Choice of Award Coverage Bill is aimed at reducing the access of workers in small business to award coverage. When unions attempt to “rope in” workers into the award using a log of claims, it must be demonstrated that the union has at least one member in the workplace.

The Workplace Relations Amendment (Better Bargaining) Bill is aimed at building on the restrictions on protected industrial action passed in 2002. The legislation would ban all industrial action that occurs prior to the expiration of an enterprise agreement. Currently, industrial action taken to resolve issues not covered in an agreement prior to its expiration, is still protected action.

The bill will also empower the AIRC to impose “cooling off” periods during bargaining, which will make any form of normally protected action taken during this period illegal. A “cooling off” period can be imposed where protected action threatens to cause significant harm to any person (in reality, to the profits of an employer) and where suspension of bargaining would not be against the “public interest”.

Application for a “cooling off” period could be made on behalf of, or by, persons directly affected by industrial action or by the relevant federal government minister. The effect of this provision for workers in education, health and the fire services, is that the government can move to revoke access to protected action, greatly reducing their ability to win decent agreements.

The government has also identified the vehicle manufacturing industry — in which the use by employers of “just in time” work practices means industrial action at a single components manufacturer can bring the entire industry to a immediate halt — as a key target for the legislation.

Furthermore, any industrial action that affects parties not directly involved in the dispute will not be considered protected action.

In his speech introducing the legislation to parliament, Andrews made it clear that this section of the legislation is aimed directly at blocking the use of pattern bargaining. However, its effect would be much greater, as any picket line that involved workers not directly involved in the dispute would also lose its protected action status.

The legislation would mean that establishing a community protest line such as at Morris McMahon in Sydney earlier this year would open workers and their unions to AIRC fines and civil suits by the employer.

Labor and the Greens have stated they are opposed to the legislation, and the Democrats have indicated they do not support some provisions in the Better Bargaining Bill.

Originally published in Green Left Weekly #562

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Can unions Stop the spread of casual work?

Lisbeth Latham

During the past two decades, the number of Australian workers employed as casual workers has grown dramatically. More than 2 million workers — or a quarter of the workforce — are now employed on a casual basis.


“Casual employees offered cheaper labour costs, they offered greater ease of dismissal, they offered the opportunity to match labour time to fluctuations in demand, they offered greater administrative convenience, and they offered a greater opportunity for enhanced control of employees”, Dr Ian Campbell, a lecturer at RMIT, explained in a submission to the Australian Industrial Relations Commission (AIRC).

While casual employment may be good for company profits, it increases work stress and uncertainty for workers, and exacerbates income inequality. According to the Australian Council of Trade Unions' (ACTU) Future Strategies report, during the 1990s almost three out of every four jobs created were casual or part-time. Eighty per cent of the jobs created paid less than $26,000 a year. This lowering of income partly reflects that most casual workers are part-time, but a hefty 39% of casuals are full-time workers.

Casual employment is not, as many believe, used mainly as a temporary stop gap. Tony Abbott, the federal workplace relations minister, told parliament on June 23 that the majority of casual workers have worked for the same employer for the last 12 months and have regular patterns of work.

The federal government, and employer organisations such as the Australian Chamber of Commerce and Industry and the Australian Industry Group, justify the increasing casualisation of work with the claim that a “flexible” work force will ensure business competitiveness.

This just means that denying workers’ holiday and sick leave means bigger profits. In the NSW TAFE system, for example, there are more than 15,000 casual part-time staff. According to July 4 episode of the ABC’s Stateline program, casual “part-time” teachers working full-time hours earn approximately 30% less than their full-time colleagues employed on permanent basis.

The growth in casual employment also undermines conditions for permanent workers, who are driven to become more “flexible” in order to compete. In the stevedoring industry, for example, the current P&O agreement creates a new form of work — “permanent irregular”. While they have a guaranteed annual income, these workers will not have a roster. Instead, like current casuals, their shifts will be irregular and impossible to plan around.

A large number of different employment conditions makes it harder to develop solidarity in a workplace. It’s easier for bosses to play the different groups against each other.

There have been a variety of different responses to casualisation from its opponents. Unions have tried to improve conditions for casual workers, limit the spread of casual conditions and ensure casual workers can move into permanent positions relatively quickly.

To achieve this, unions have pursued clauses in enterprise agreements and rulings in the AIRC that limit the proportion of a work force that is casual, limit the amount of time a worker can be employed casually and make casual workers more costly to employers.

Casual employment conditionsIn 1999, the metal division of the Australian Manufacturing Workers Union applied for a variation in the metal and engineering award, in order to improve the working conditions of casuals. The AMWU wanted to increase the casual loading to 30% and establish a minimum daily hiring period (“engagement”) for workers.

Casual loading compensates casual workers for their exclusion from award benefits such as sick and annual leave. The union estimated that anything less than 30% meant casuals would be worse off than permanent workers.

One of the worst pitfalls of casual work is the lack of certain income. The daily minimum engagement was designed to limit this, and ensure that workers knew they would be paid enough to offset the costs of going to work, such as transport and childcare. The AMWU applied for a minimum engagement of six hours, and a maximum of one engagement per day.

While the AIRC accepted the AMWU’s arguments, it granted an increase in loading to 25%, and a minimum engagement of four hours, with workers able to be engaged more than once a day.
Despite the short-fall, this case provides a basis to argue for such changes for all casuals. The National Tertiary Education Union (NTEU) is attempting to use the decision as a precedent to win a 25% casual loading as part of its national pattern bargaining campaign for new industrial agreements. The Australian Workers Union (AWU) has also won an increase in the casual loading to 25% for horticultural workers and shearers.

An alternative approach is being followed by the New South Wales Teachers Federation. In a claim going before the industrial relations commission in September, the federation is asking for casual part-time TAFE teachers to receive pro-rata conditions such as holiday and personal leave. The claim is for staff who work eight or more hours a week, and will affect 5200 teachers in New South Wales.

Limiting casual employment
In the 1999 metal and engineering case, the AMWU unsuccessfully attempted to ensure casual employees were only employed to meet short-term work needs, in emergency circumstances, or to perform work unable to be practicably rostered to permanent employees. The union wanted to ensure that permanent employment remained the standard form of employment.

The NSW Public Service Association (PSA) won an alternative limit on casual employment in the libraries of the Illawarra TAFE Institute during 2001. The institute's management had attempted to reduce permanent employment by replacing retiring permanent workers with contract casual labour. Through a persistent industrial campaign, the PSA's members were able to win a 5% cap on the proportion of workers that could be employed as casuals.

Converting casual to permanent employmentDuring 1999 and 2000, three landmark award decisions gave casuals the right to transfer to permanent employment after a period of time. These were the graphic design award, the South Australian clerks award and the metal and engineering awards.

On the graphic design award, the AIRC ruled in 1999 that after 12 weeks, casual workers would automatically switch to permanent employment. This could be extended, if the worker, union and employer agreed, by a further 12 weeks — if the work was ceasing during that time.

In a 1999 case before the South Australian industrial relations commission, workers covered by the clerks’ award were given the right to “voluntary conversion” after 12 months, although this could be extended to two years. Under voluntary conversion, workers must apply to be made permanent, and can be refused if “reasonable grounds” are given.

In the 1999 metal and engineering award case, the AMWU applied for automatic conversion to permanent employment after four weeks, extendable to eight weeks. However the AIRC ruled that in order maintain “employer flexibility”, voluntary conversion would apply after six months, extendable to a year.

The AMWU wanted a shorter pre-conversion period in order to discourage bosses from laying off workers instead of making them permanent, then hiring new casuals. The shorter the period, the more often bosses would have to hire and train workers in order to keep rotating casuals.

Since these decisions, conversion rights have been inserted in a number of awards. In May 2003, the Liquor, Hospitality and Miscellaneous Workers Union (LHMU) won voluntary conversion after 12 months for workers in the hospitality industry. Casual horticultural workers in New South Wales, South Australia, Tasmania and Victoria now have voluntary conversion after 12 months. The NTEU is also seeking conversion rights after 12 months in its pattern agreement.

According to Professor Barbara Pocock from the Centre for Labour Research at Adelaide University, voluntary conversion provisions have had limited success. “This is not surprising when you look at the workers who are in casual employment, and the precarious circumstances of their employment”, she told Green Left Weekly. “There are two reasons for this low uptake. Firstly, any casual worker applying to their employer to [be made] permanent is sticking [his or her] head out, so it would take a very brave person to do so. Secondly, most casual workers are on low wages, so the move towards permanent employment means a 20% cut in take home income that they cannot afford”. Pocock's research indicates that many casual workers underestimate the risks of casual work, which has no sick leave.

Pocock argues that casual work should be “strictly limited to truly temporary work, and any work that extends this should automatically convert to permanent employment. This would allow workers to factor into their budgets the move to permanency and would eliminate an abuse of the industrial relations system”.

The AIRC might be unwilling to allow short-term, automatic conversion to permanent employment, but the Victorian AMWU has shown it is not impossible to win it. In the branch’s metal division Campaign 2003, the model agreement includes automatic conversion from casual to permanent employment after 12 weeks. Through militant industrial action, this has already been won at a number of work sites.

Originally published in Green Left Weekly #547

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