ACTU & ICFTU President Sharan Burrow
Address to International Labour Organisation
9 June 2005
Geneva, Switzerland
It gives me no pleasure to represent Australian workers here today.
We are watching the systematic dismantling of a civilized Industrial Relations system
where employees have rights. To know that this is a deliberate act by a Government in
a democratic nation and to witness the impact on the lives of Australian workers and
their families is a shocking reality and yet the one we live with in my country.
There is no pretence that Australian laws promote collective bargaining.
This is so, even if where an overwhelming majority of employees have expressed a
desire to stand up for each other and bargain collectively with their employer.
Rather in Australia it is the employer who decides whether bargaining will occur or
where an employee will be forced to sign an individual contract.
It is no exaggeration to state that, in Australia, there is no right to collectively bargain.
Rather it is now legal in Australia for the employer to make it a pre-condition of
employment that an employee sign an individual contract, the effect of which is to
prevent that employee being covered by a collective agreement. This locks out any
collective bargaining for up to three years, and the Government has foreshadowed that
this will extend this provision to five years.
Such employer behavior has been legally held not to amount to co-ercion, and
therefore does not offend our laws.
1
As the Committee of Experts noted in its 2000 report “such situations could amount to
anti-union discrimination, contrary to Article 1, and could not be said to encourage
and promote voluntary collective bargaining, contrary to Article 4.”.
Sadly it is not only at the time of recruitment.
Employees can be required to forfeit their right to bargain collectively in order to
access a wage increase, and such a requirement has been found to comply with our
labour laws.
And it has been held lawful for an employee to be required by their employer to give
up their involvement in union activities forever. (Toby 2000)
There is no question that the current laws in Australia offend Convention 98 in that
they permit employers to make the obtaining of a job, the obtaining of a benefit of
employment, and the continuation of a job, dependent upon employees abandoning
their right to collectively bargain.
This is not a benign and unintended consequence in our laws. It is government policy
that individual bargaining should over-ride collective bargaining, and lock out
collective agreement-making.
Let me give you three recent examples.

Just last week a group of young workers in NSW had their employment
transferred to a company that would only employ them on a “take it or leave
it” individual contract basis.
What power do young workers have to stand up to an employer when the
consequence is their job and thus their livelihood?

Earlier this year we saw a group of mothers employed to pack mushrooms on
a casual basis, sacked for refusing individual contracts that saw their pay
change from hourly rates to piece rates and a drop of 25 per cent.
In this case, they had the union and the protection of a legal right to prosecute under
“unfair dismissal” protections – a protection the Government proposes to abolish for
all workers in enterprises where less than 100 people are employed….99% of
Australia’s workplaces.
2

A group of clerical workers, mostly women, in a company dependent on State
Government contracts felt so strongly that their rights to bargain collectively
were being denied that, with the support of their union, they took the matter to
the Industrial Relations Commission and asked for a formal ballot in their
workplace to be conducted. 83% of these workers said they wanted to bargain
collectively and be represented by their union. The employers refused and
deliberately set about to discriminate again union members with the denial of
backpay if they did not sign an individual contract. I know this case firsthand
because I stepped in and negotiated on behalf of the union.
It wasn’t the law that protected these workers, it was the union movement with simply
the power of persuasion. Australia has a rights based approach - but for employers!
It is hard to believe that a Government in a democratic nation would be so determined
to dismantle collective bargaining, that they would threaten our universities and
technical colleges with denial of funding unless they ignore the fact that their
employees are organized and determined to bargain collectively and offer individual
contracts.
If I told you the same is true for state government projects or private sector
infrastructure contracts where there is national government money involved would
you believe me? I wouldn’t blame you, for I find it hard to believe myself, that a
democratic government; our government, in one of the richest nations in the world,
employ the very worst forms of bullying and stand over tactics, to deny Australian
workers the unfettered right to collective bargaining.
The Government doesn’t prohibit collective agreements in our universities, but it
insists that every collective contract contain a clause that gives precedence to
individual bargaining.
You have Government representatives who stand here today and talk about choice.
Perhaps you should ask why in their own department their co-workers have no choice.
The Department of Employment and Workplace Relations has, from April 4 required
that all new employees sign an AWA as a condition of employment, thus depriving
3
these new employees of their right to participate in collective bargaining outcomes
applying to all new staff. They also flagged that this was to become the case for
ongoing employment but have backed off on that intention, presumably until the next
round of legislation.
Choice – no choice for these workers and tens of thousands of others in the
Government employ.
It is a startling sight to walk into DEWR officers and see huge posters advertising
AWA’s on-line. No promotion of collectively bargaining is evident. We have seen
30% more individual contracts filed for approval in the last year as the government’s
campaign denudes collective bargaining rights.
The outcomes are becoming very clear as wages and conditions are driven down. In a
recent academic study in Australia:

56% of agreements analysed were below the minimum award rate with 77%
for casual workers.

67% of agreements did not include overtime rates and less provided for week
end penalties

87% of agreements had a span of hours of 12 or more with the majority have
no span of hours.
This is just an example of a whole list of discriminatory provisions compared
to the safety net system of award minimums let alone the superior collective
bargaining outcomes in Australia. The most vulnerable of workers,
particularly women and young people are being further exploited.
In the state of western Australia where this system was pioneered, the results
were that these workers became the lowest paid workers in Australia and for
women the result was devastating. A massive increase in casualisation and
precarious employment, lower wages that women in any other state, and a pay
parity gap of 23% by comparison to male full time earnings.
All of these and the millions of other cases I could talk to you about, offend
Convention 98.
4

It offends Convention 98 in that it fails to encourage collective bargaining.

It offends Convention 98 in that actively discourages collective bargaining.

It offends Convention 98 in that it offends the autonomy of the parties to reach
agreement.
Furthermore, if the parties at the workplace do opt for a collective contract, the parties
are constrained in what they can agree.
In Australia, the law places restrictions on the both the content of agreements and the
levels at which agreement making can be pursued.
Multi-employer agreements are effectively subject to prior approval, as they can only
be enforceable if they meet a public interest test. Industrial action in pursuit of such
agreements is unlawful.
Australian laws prohibit employers and employees freely negotiating a number of
matters that, in the opinion of the Committee of Experts, should be open to the parties
to agree.
Since 1996, the statute expressly prohibits negotiation of strike pay, and more recently
the government prohibited parties from making enforceable agreements containing
compulsory bargaining fees, even where they were endorsed by majority ballot.
And a law is currently before the Parliament that will prohibit the inclusion of
provisions governing union right of entry into workplaces in collective contracts.
In addition, a decision of the High Court last year has the effect that a number of other
provisions have been determined to be outside the scope of lawful bargaining,
including the voluntary agreement of employers to payroll deductions of union fees.
And of course as such agreements are prohibited, so too is industrial action in support
of such matters.
Freedom of Association
If the right to Collectively Bargain is a hollow and unenforceable right, then Freedom
of Association and the right to Organise is similarly fictitious.
5
While workers notionally may join a union, they have no means to enforce their right
to organise. Last year the Government brought forward a law that would mean
workers’ representatives would be restricted to visiting the workplace in order to
recruit union members, to once very 6 months. Addressing the Parliament last year
the Minister said that unions’ role in the workplace was “as membership based service
organisations” 1.
But the workers representatives are not the same as a car club or a credit union. WE
say it is a useless right to be able to join a golf club if you can’t play on the course.
With respect to activities to advance the interests of member, the Australian laws are
already restrictive.
For example it has been found that, once an employer has successfully signed all the
employees onto individual agreements, a union no longer enjoys the statutory right to
visit employees at the workplace, in order to hold discussions with the employees,
regardless of union membership at that workplace. (ALDI Foods v NUW)
Immunity from civil prosecution is provided to employees engaged in industrial
action, only during the bargaining for a new agreement. While the law currently
permits workers to access immunity in respect of a matter arising during the term of
an agreement in relation to a matter got governed by their contract, a new law
proposes that any action in respect of any subject matter, will be unlawful during the
life of a collective contract.
Sympathy action is not immune, and a new law is in the Parliament designed to
further restrict this.
But while interested workers, who are not direct parties to the dispute, cannot take
sympathy action, the same law will grant third parties the right to apply to remove
immunity from civil penalty. There can be no industrial action in pursuit of strike pay
or bargaining fees.
1
The Hon Kevin Andrews, Workplace Relations Amendment (Right of Entry) Bill 2004, Second
Reading Speech http://www.aph.gov.au/Senate/committee/eet_ctte/wr_rightentry/secondreading.pdf
6
And, at the same time that the High Court decision last year limited the matters which
may be included in an enforceable collective contract, it also limited the matters about
which workers may take industrial action with immunity.
This is matter of grave concern to Australian workers, and to the ACTU. Last year
Australia celebrated one hundred years of its unique system of industrial relations.
For over one hundred years, Australian labour laws have been founded upon the
assumption that the Government’s powers are limited to settling industrial disputes
through an independent process of conciliation and arbitration.
Our system has been unique.
Until now the absence of a genuine right to collectively bargain was tempered by the
existence of the Australian Industrial Relations Commission (AIRC), which afforded
workers representatives status through its award making powers.
But a fortnight ago our Prime Minister announced the effective abolition of our
current system, which will see the IRC effectively annulled.
For more than a decade workplace bargaining has been underpinned by a safe and
secure set of minimum, skills-based wages reflecting the nature and complexity of
work, and minimum conditions of employment that reflected the nature the industry to
which they applied, administered by this independent body.
Employees who were not engaged in bargaining; overwhelmingly women and part
time employees, relied upon this safety net. Those workers who were unable to
bargain were protected by an independent tribunal charged with adjusting the
minimum wages and conditions, balancing the needs of the low paid with the desire
for high employment, low inflation and high productivity. Employee, employer and
government advocates provided the tribunal with evidence and argument.
Upon application, this tribunal could evaluate whether employees were receiving
equal pay for work of equal value. Just this year thousands of women working in
child care centres were granted a $65 per week wage increases in recognition of the
under-valuation of their work.
7
And the AIRC could adjust minimum conditions to ensure they were suitable to a
modern economy. Currently it is considering whether to extend parental leave and
improve family and carer’s leave, and the arrangement of working hours for
employees with caring roles.
From next year this tribunal will have no role in wage setting and a new body of
government appointees will deliberate (possibly behind closed doors) to set a
minimum wage. The IRC’s role in setting minimum conditions will be curtailed.
Minimum conditions of employment will be set by Parliament, politicizing the
process.
And the Government announced that it will exempt all employees engaged by firms
employing fewer that 100 employees from the termination of employment laws. This
means that 99 per cent of private sector employers will be exempt from the laws.
This is in addition to exemptions for employees in their first 6 months of work,
trainees and apprentices; and casual employees with less that 12 months service with
their employer. This makes a mockery of Australia’s ratification of the Termination
of Employment Convention.
Even more insidious, but perhaps of greater long term consequence is the shift in the
constitutional basis upon which our government will legislate.
In a recent lecture the Professor of Labour Law at the University of Sydney, Professor
Ron Mc Callum, characterised the Australian constitutional approach as one which
put the relations between capital and labour into the hands of a court or independent
tribunal. The hallmark of the Australian Constitution is that disputes between labour
and capital must be settled by conciliation and arbitration, with a focus upon the rights
and obligations of employees and employers and their respective organisations.
This, according to Mc Callum, is an industrial citizen's constitutional charter.
In contrast, reliance upon the corporations power means that the validity of the law
rests on the workers relationship to the corporation. Thus for a labour law to be
validly enacted under the corporations power, it must focus upon the rights and
obligations of corporations and on the rights and obligations of those who deal with
8
them. Labour is defined through its relationship with the corporation, and has no
independent status or dignity.
The Government’s announcements show it has no regard for its obligations under the
conventions it has ratified. This, at a time when they have sought and obtained a seat
in the Governing Body of the house.
It is time to call it to account.
9