Union bashing or overdue reform?

There’s plenty of room for cynicism about the Howard government’s motives in Tony Abbott’s introduction into Parliament today of tough new legislation regulating the troubled building industry, just as there was in relation to the Cole Royal Commission that gave rise to the proposed reforms.

However, the substance of the reforms themselves is more equivocal. Certainly, placing 2 week limits on strike action; making it harder for union reps to enter worksites; and making it easier for unions to be sued; all seem to be measures that conflict with the fundamental democratic right of working Australians to organise and bargain collectively on wages and conditions. Hopefully they’ll be defeated in the Senate.

On the other hand, I have to confess I’ve never understood how the labour movement manages to argue with a straight face that secret ballot requirements for strike action, or abolition of “closed shop” workplaces, are contrary to principles of workplace democracy. On first principles the opposite is the case. The longstanding labour movement position on those questions seems to have more to do with preserving the power of union bosses than protecting the rights of ordinary workers.

Of course, maybe the devil is in the detail of the legislation. Perhaps the secret ballot procedural requirements have been made so complex and onerous as to render strike action effectively impossible. But if that’s the case why not oppose the legislation on that basis and propose amendments to streamline secret ballots and make them workable? Maybe some of our labour movement bloggers (like Rob Corr or even Christopher Sheil) could explain to some of us sceptical centrists why we should view this as a matter of democratic principle rather than raw union boss power.

Update – Jason Soon focuses on other aspects of Abbott’s Bill, namely the fact that it is single industry-specific and proposes a regulatory authority with draconian powers that would “micro-manage” the building industry. Jason suggests these aspects are also undesirable. I agree.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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cs
cs
2022 years ago

Ken,
I haven’t time to buy into this in a serious way (and there are a range of questionable assumptions about democracy entailed in the way the issues have been framed). However, as a quick riposte, and assuming nil transaction costs in implementation, let me ask whether you would support the untrammelled right of union members to secretly oppose the recommendations of their leaderships, if the outcome was likely to be a massive increase in strikes? Assuming nil additional transaction costs, in some industries, the conditions are such that this would definitely be the case.

Ken Parish
Ken Parish
2022 years ago

Chris,

My initial response is yes. I would support scret ballot even if its result was an increase in strike activity. Surely that’s democracy. If union leaders have been providing such poor leadership that workers adopt a more militant approach as soon as the intimidatory element of a show of hands is removed, then that’s hw it should be. No doubt such an outcome would not suit the Howard government, but I approach the issue from a rather different perspective. Are you suggesting that union leaders oppose secret ballot because they’re concerned to minimise strike activity?

Ron Mead
Ron Mead
2022 years ago

“and making it easier for unions to be sued;”

Yes, making unions subject to the rule of law like the rest of us would be a terrible thing to behold, begorrah!

cs
cs
2022 years ago

Ken, I’m not suggesting anything, although I don’t automatically assume intimidation in the way you do, as this would only apply if sanctions followed upon a contrary voting response. Without sanctions, and following proper debate, placing your reputation on the line can enhance responsibility and accountability in voting. You only need note the difference in manners in the blogosphere between those who use their real names and those who use nom-de-blogs to see this point. The only occasion when I would unequivocally support a secret ballot is in voting for leadership positions.

In any event, I’m just seeking to explore some of the issues, and in my previous point I was referring to the common misperception that union leaders have a propensity to call for strikes. Of course, it’s hard to generalise, but the most common practice of leaders is to seek to use their members’ industrial muscle as a last resort and even then as judiciously as possible … which often involves hosing down the militant anger of the members for their own good. I think there is little doubt, for example, that Australia would have been wracked by strikes in the wake of the mass dismissal of the waterfront workers in 1998, had it not been for the discipline union leaders were able to apply.

Which raises another issue. One of the problems that invariably arises from attempts to dilute the relationship between the leadership and the rank and file is that the traditional forms of organisation persist in any event. If workers strike, despite the best efforts of the leadership to organise a secret ballot, should the leaders be held to account? This was one of the issues that arose under the WA legislation, where in at least one industry I know of, the leaders were having to constantly expend their energy trying to chase after their members to keep them at work until they had fulfilled all the legal requirements (impossible provisions for ballots etc) for a strike. This leaves the leaders terribly exposed. In other words, if the disjuncture between workplace conditions and the state imposed constraints on leaders becomes too severe, the result is that another informal union with alternate leaders will tend to organically arise underneath the state-controlled organisation … (dare I suggest that this sort of internal disruption might be on Abbott’s mind?). Implicit in any support for shifting power away from leaders is less capacity to hold them to account for the results. This is written in the history of Australian industrial relations, where the laws have been written and re-written, now giving more power to the members only to then shift it back so the leaders can have sufficient control for the state to hold them accountable.

Incidentally, re Ron’s point, I always find it amusing that government rules become ‘laws’ when they are applied to trade unions, only to transmogrophy into ‘unnecessary, interfering and burdensome regulations’ when they are applied to businesses.

Gummo Trotsky
2022 years ago

Ken,

It’s been a very long time since I’ve walked past a building site and seen one of those “No ticket, no start” signs, so I’m having a bit of trouble with your “closed shop” point.

I remember Peter Reith, in his time as Minister for Union Bashing, promising to take on the “closed shop” in the Public Service. As a former union rep in the APS I wan’t sure whether to laugh bitterly or fume silently at the suggestion that the Public Service had become a closed shop. I worked in a department that was highly unionised (and yes, I did succeed in turning my own little corner of the Public Service into a “closed shop”) but it was thanks to vigorous recruiting by the union reps; under law the APS couldn’t make it a condition of employment that you joined the union. OK, so occasionally I might have resorted to pointed remarks about how easily someone’s treasured Magpies coffee mug might go missing from the tea room, or how unsightly a blotter looks after someone has spilled half a bottle of purple stamp-pad ink on it, but for the most part it was done by convincing people that there were more good reasons for joining the union than staying out. My most effective recruiting strategy was to take on a serious industrial campaign over working conditions. That really pulled them in.

The point I’ve been rambling on towards is that high rates of union membership in a particular industry aren’t necessarily the result of unions enforcing a “closed shop”; you can achieve the same result without blackmailing an employer with the continual threat of strike action if he/she employs non-union workers. The Liberal’s fixation with the “closed shop” as a bad thing, and necessarily evidence of union perfidy ignores a lot of alternative explanations for high levels of union membership in some industries or workplaces; management incompetence for example.

Ron Mead
Ron Mead
2022 years ago

‘unnecessary, interfering and burdensome regulations’ they may be, Chris, but obey them business must or else. My point is that the same should apply to unions. I certainly don’t have any problem with unions advocating against a law proposal or advocating a change in an existing law. That’s democracy, a rather strange concept to union leaders, but a lot of people rather like it.

Gummo Trotsky
2022 years ago

Unlike company CEO’s eh Ron?

Ken Parish
Ken Parish
2022 years ago

Gummo,

I’m anything but an expert on industrial relations law, which is part of the reason I wrote this post (to elicit observations from people who were). But my general understanding is that “closed shops” in the formal sense were outlawed by the Workplace Relations Act. However, in some parts of the building and some other industries they’re effectively maintained to a considerable degree by coercive practices quite a lot more sinister and heavy-handed than nicking someone’s coffee cup or spilling ink on their blotter.

It might be both possible and equitable to strengthen protections for non-union-member workers in overwhelmingly unionised workplaces, without unfairly hamstringing legitimate union activity. Whether the Abbott Bill can be so characterised is, of course, doubtful in the extreme. The Bill doesn’t seem to be available yet on the Parliament website.

cs
cs
2022 years ago

Call me old fashioned, but I have no problem in principle with people not wanting to join unions, provided they are not just taking the opportunity to free-ride … a notion that Australians used to call bludging … in which case I have always supported the idea that non-members should be willing to show their bona fides by donating the equivalent of their union dues to a cause or charity etc of their choice.

Re the manners in the building industry, anyone who thinks these workplaces can be legislated into behaving like nuns’ picnics …

Gummo Trotsky
2022 years ago

Ken,

I’m not a complete building industry virgin (most of my family are in the building industry and I did a stint on a building site one Uni vacation). Ditto several factories.

The problem I have with the “closed shop” shibboleth is the automatic assumption that every time a union succeeds in recruiting everyone who works in a particular workplace, there must have been something underhanded and possibly thuggish going on. For some reason, the conservative side of Australian politics have difficulty getting it into their heads that people might have very good reasons for wanting to join unions, and would rather assume that it’s all down to coercion or cynical manipulation of the membership.

You could go a long way towards reforming industrial relations (and possibly look at applying existing criminal law) to eliminate the sinister and heavy-handed techniques you allude to and Tony Abbott and his ilk will still be pontificating about the need to eliminate the “closed shop” once and for all. The only way they’ll ever get that is by coming right out into the open and outlawing trade unions altogether.

Ron Mead
Ron Mead
2022 years ago

“Unlike company CEO’s eh Ron?”

Gummo, I’ve got no brief for company executives who flout the law. They may scream and shout, for example, at the ACCC, but very few have ever succeeded in winning their case in a court of law. But they were still entitled to object to the show-biz behaviour of Fels, as unions are entitled to scream about Reith and Abbott. My point remains that in respect to industrial relations, there is one law for unions and a different, more stringent one for companies in relation to restrictive practices. Companies can be sued for collusive practices, unions cannot be.

cs
cs
2022 years ago

Employers are not allowed to combine? Somebody better tell the ACCI, the AIG and the BCA …

cs
cs
2022 years ago

Employers are not allowed to combine? Somebody better tell the ACCI, the AIG and the BCA …

Ron Mead
Ron Mead
2022 years ago

Forming business associations is not the same as price fixing, Chris.

cs
cs
2022 years ago

Labour is not just another commodity, Ron.

Ron Mead
Ron Mead
2022 years ago

Chris, you misunderstood me. I was simply pointing out that businesses combine in forming associations like Chambers of Commerce, and so on, which is quite legal, but businesses getting together to fix prices is illegal. In other words collusion is not the same as combining. Nothing to do with whether of not labour is a commodity. That’s another topic, but suffice to say I don’t agree with you about that, either.

Ken Parish
Ken Parish
2022 years ago

It’s mostly about redressing power imbalances IMO, to create something resembling equality of barganining power. The “market forces” mantra is meaningless in an era of chronic labour oversupply, where isolated individual workers are told to “bargain” with huge corporations like NAB or BHP over their wages and conditions. In that situation collective bargaining creates at least the possibility of a functional market.

Prohibitions on price fixing by corporations have a related function. It’s impractical for isolated consumers to band together into negotiating collectives whenever they want to buy a packet of cornflakes, so the law attempts to provide something resembling a market by atleast stopping businesses from colluding with each other, so that the isolated consumers at least have a degree of choice. There is nothing logically or philosophically contradictory about supporting both the right of workers to bargain collectively and the necessity for prohibitions on corporate collusive price-fixing.

cs
cs
2022 years ago

Ron, don’t businesses get together to fix the prices they will pay for labour?

Oh, and I agree with Ken. Collective bargaining and the right to strike are basic human rights imo.

Ron Mead
Ron Mead
2022 years ago

“There is nothing logically or philosophically contradictory about supporting both the right of workers to bargain collectively and the necessity for prohibitions on corporate collusive price-fixing.”

I’m not complaining about collective bargaining or about the proscribing of price collusion. Nevertheless unions are exempted from laws forbidding engaging in secondary boycotts . All other organisations may be sued for damages caused by these sorts of acts, but not unions. One law for us, another for them.

Ken Parish
Ken Parish
2022 years ago

Ron,

Unions are not “exempted from laws forbidding engaging in secondary boycotts”. Sections 45D and 45E of the Trade Practices Act apply to unions just as they do to anyone else. I should know. I had the conduct of substantial parts of one of the pioneering 45D cases in the 1980s – the Mudginberri litigation. Moreover, for my sins, I acted for the employer and was instructed directly by people like Andrew Robb etc. The press release you linked deals with whether the ACCC can take representative actions (class actions) on behalf of small businesses affected by secondary boycotts. Obviously that would give small businesses additional power, but it says nothing about whether as individual businesses they are protected by section 45D itself. They are.

Thus, if that was what you were talking about, you were just plain wrong!

Lawrie
Lawrie
2022 years ago

Before getting too unctuous about rights of unionists how about getting a job on a building site and see at first hand what bastardy and outright criminal behaviour goes on with union reps who should be in jail and bask in the knowledge that they are untouchable.
And they are untouchable!!!!
More power to Abbot and my hero will always be Peter Reith.

Ken Parish
Ken Parish
2022 years ago

I should slightly qualify my previous comment. Section 45DD of the TPA exempts trade unions “if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer
of that person.”

In other words, if it’s sufficiently closely related to primary industrial action in respect of wages and conditions in relation to that employment. However, sections 45D has full force and effect in prohibiting true secondary boycotts i.e. strikes, pickets or other bans in support of other unions or other groups of employees employed by other employers. It is that sort of broad, concerted industrial action at which 45D is aimed, and it remains prohibited whether committed by unions or anyone else.

Ron Mead
Ron Mead
2022 years ago

It’s a question of enforcement, Ken. Small businesses individually don’t have the financial clout to stand up to large unions. They need the ACCC’s assistance as a protection against targeting by unions. It’s really the same logic as supporting collective bargaining by otherwise powerless employees vis-a-vis large companies.

Ken Parish
Ken Parish
2022 years ago

Ron,

There’s a rather large conceptual distinction between accepting the validity of collective action, whether by groups of employers or employees, and demanding that the taxpayer should fund and conduct that action. In demanding that the law be amended to allow the ACCC to conduct class actions on its behalf, the small business sector is effectively demanding that the taxpayer fund and conduct its litigation for it. Would you accept that the taxpayer should also fund and conduct litigation on behalf of trade unions? I suspect I know the answer.

Ron Mead
Ron Mead
2022 years ago

You are quite right about not wanting taxpayer funding of civil litigation for either business or unions. Price fixing by business is a criminal matter and businesses get fined huge amounts for breaches, as they should. If it’s a criminal offence for unions to engage in secondary boycotts you don’t hear of severe penalties for unions so engaged. Either it’s a matter not prosecuted or unions refrain from such dastardly action these days. I find that hard to believe.

Ken Parish
Ken Parish
2022 years ago

Ron,

I think you’ll find secondary boycotts by unions are indeed rare (and almost non-existent) these days, precisely because of the major risk of huge damages awards. That is a direct result of cases like Mudginberri and Dollar Sweets (where Peter costello made his reputation) in the 1980s, in which unions were subjected to very large damages awards.

trackback
2022 years ago

http://mentalspace.ranters.net/mini/2003_09.html#000221

Another one! Ken Parish has hit fifty. Congrats, Ken.

trackback
2022 years ago

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