There’s been a fair bit of discussion around the traps about Adam Bandt’s statement yesterday about what the government should have done, or left undone, with regard to the Qantas dispute. Some of Bandt’s post seems to echo criticism from journalists and the opposition of the Gillard government’s role, for instance by saying:
… And it should have entered the negotiating fray itself, helping bang heads together.
Leaving that aside, though I think there is an element of piling on Julia Gillard at work, Bandt makes a number of claims, one based on a factual error, and the other encompassing a confusing elision between claiming the “government shouldn’t be taking sides” (which the government itself has claimed not to be) and an apparent belief that a suspension of the bargaining period, as opposed to a termination, would somehow have resulted automatically in industrial victory for the unions. Or perhaps Bandt is making or implying an argument that it’s undesirable, generally, for ‘third parties’ to intervene in industrial disputes.
Let’s get a number of facts on the table, first:
(a) The government, represented at FWA on behalf of the Minister, Chris Evans, argued either for a termination of the bargaining period, or for a 90 day suspension. That’s clear from a reading of the decision by Guidice J, Watson SDP and Roe C, right at the outset. The government was actually being consistent with the thrust of its own Act, that such matters ought to be subject to judicial determination, and, like the other parties involved, was following normal industrial practice by envisaging a range of outcomes which the tribunal might give effect to. It’s important to recognise this, and as far as I can see, it’s been completely overlooked, because it is highly pertinent to the Tony Abbott line that the Minister should have used the powers available to him under section 431 of the Fair Work Act.
(b) Bandt says:
Ever since John Howard’s WorkChoices, the spirit of which still lives in the current legislation, many unions have sought to bargain for an outcome and avoid arbitration. Why? Because the outcomes you’re likely to get in an arbitration are widely thought to be less than what you might get in bargaining. Especially over matters that impinge on managerial prerogative. Like job security clauses, a key claim of the unions in the Qantas dispute, because they are concerned about ‘offshoring’ and contracting out of their work.
Partly, this is wrong, and partly, again, it’s confused. FWA gives greater scope for arbitration than WorkChoices in the case of low paid workers, in particular, and where both parties consent to conciliation and arbitration. It’s true that the provisions regarding the availability of arbitration to settle disputes are not substantially changed from WorkChoices (with a very important exception, which I’ll come to). But this gives the lie to his logic. How could unions have been seeking to avoid arbitration, when arbitration has not been a legal option except in exceptional circumstances such as would trigger the termination of a bargaining period? It doesn’t make any sense, and in fact, the whole thrust of the reforms since, arguably Paul Keating’s Industrial Relations Reform Act 1993, and certainly since the Peter Reith/Cheryl Kernot Workplace Relations Act 1996, has been to de-emphasise and radically restrict arbitration.
Certainly, from WorkChoices onwards, the choice has simply not been there for unions. So it’s hard to know what he’s saying here. That’s why various analysts of Australian industrial relations have characterised the system we had as ‘voluntary collective bargaining’. One of the most important changes ushered in by the Fair Work Act was to remove the right of management to refuse to negotiate with unions. So we have probably returned, not to a regime which offers a choice between conciliation and arbitration and bargaining, but to one of compulsory collective bargaining. The enhanced provisions for union recognition, and for good faith bargaining, are precisely what business has been screaming about. So I think Bandt’s claim that “the spirit of [WorkChoices] still lives in the current legislation” needs heavy qualification.
Under WorkChoices, the most likely outcome would have been freer rein for Qantas to pursue a naked strategy of de-unionisation. Peter Reith’s very vocal calls for ‘free collective bargaining’ are exposed for what they are by his references to Margaret Thatcher in the same breath.
What I suspect Bandt actually has in mind, and this is taking us closer to the crux of the matter, is the degree to which unions in strong bargaining positions have been able to influence (but not determine) managerial strategy through “job security clauses” and restrictions on contract labour, or agreements that contractors be paid the same as employees. Typically such agreements have been reached in labour intensive industries where time constraints (and penalties for non-completion) are a factor, and where competition is minimal. Construction is the obvious one, and mining is another.
But I’m unclear as to why Bandt thinks, or could be read as thinking, that issues regarding job security may go more in Qantas’ favour under arbitration. I don’t see any reason why they wouldn’t fall within the scope or ambit of the dispute, because they are “employment matters” (and Australian industrial jurisprudence has always sought to wall off management prerogative). Certainly the Act envisages the distribution of labour between full time and other employees and the role of contractors as matters that can be subjects for an enterprise agreement. Another very significant change between WorkChoices and the FWA was the removal of the severe restrictions of matters on which parties could bargain. Given that there are few disputes in recent times which have reached the point of arbitration, I can’t see any reason on the face of it why there would be an assumption that job security clauses would not be matters on which FWA would make a determination.
It may be that he is thinking of the very strong line in the sand business is drawing in resisting these clauses, which is, again, one of the key planks of the anti-FWA campaign.
The assumption by some, such as Dr_Tad, who have seized on Bandt’s rather confused remarks (and he does a nice line in trying to be happy and shiny and appealing to everyone - “reach a negotiated outcome by supporting the whole of the airline, management and employees, with an eye to the country’s long-term interests”) that a suspension of the bargaining period would somehow lead to a victory for the unions seems to me to be highly questionable. Syndicalist sentiment aside, sometimes, sadly, the workers united are defeated. It’s not clear to me that the interests of pilots, baggage handlers and engineers are identical, nor that they would not become separable during a 90 day bargaining period (and let’s not forget, 42 days are potentially available under the FWA decision). But, more broadly, I’m unable to see:
(a) that the industrial muscle exists to produce an outcome favourable to workers’ desire to restrict the company in its pursuit of its strategy of offshoring, cost-shifting and outsourcing;
(b) how, in the absence of arbitration, Alan Joyce would be shifted from his stated intention to again lockout the workers. All he would have to do is endure negotiations for 90 days before the bargaining period recommenced, and there’s no legal lever to exert pressure on Qantas to negotiate on job security, which it’s made clear it does not want to do. With arbitration, there is. Or, at least, there potentially is. It needs to be remembered, and FWA took note of this, that Qantas could also, and probably would, lockout its workforce again on the resumption of a bargaining period. I doubt there’s much, if any willingness, on Qantas’ side to reach agreement on job security issues, which are what remain in the air, not pay.
In short, I don’t think Bandt has much warrant for saying this:
As it is, a Labor government has tipped its hand and sided with Qantas. Whatever Fair Work Australia decides, Qantas now knows the government will help it get to arbitration.
However, he is right about one thing. In a statement today, he writes:
“Now that the government has done what Qantas wanted and removed the workers’ capacity to protect Australian jobs, the government has a responsibility to outline how it will prevent Qantas from off-shoring its workforce.”
The first bit is wrong, for the reasons outlined above. The second is right, because it’s only through political rather than industrial action that a serious challenge can be posed to Qantas’ aim of effectively closing down its international operation in favour of joint ventures and subsidiaries which would offshore jobs and radically drive down labour costs.
“Job security clauses” would be a useful restraint on this form of aggressive management strategy, but the Australian industrial relations regime simply doesn’t empower workers to determine or even co-determine management strategy. Nor are the industrial interests of the various workers and unions identical with a political strategy to maintain airlines as providers of an essential public good (which is why, of course, Qantas should never have been sold in the first place). The specious rhetoric of Qantas management about competition and cost needs exposing for what it is (and one benefit, incidentally of arbitration is that it would allow the claims by unions that it has been cost-shifting to make its international operations appear unviable to be tested).
Similarly, we need a debate on whether or not we, like other countries, need to get back into the realm of owning airlines, precisely so that management thuggery can be curtailed and so that public goods can be provided publicly (and no one disputes the financial viability of Qantas’ competitors which are government owned). In other words, we need to resist the logic of the market and contain and constrain it through politics. We need to start reviving the idea central to the social democratic project of de-commodification, of progressively challenging and removing the inexorable logic of the market through collective action, including through action which seeks to utilise and reshape the institutions of the state.
That option exists, and it exists precisely because public suspicion of corporate behaviour and the excess involved in capitalism is fast reviving. It may well be that these hopes are incapable of fulfilment by the Australian political class. But it’s a disappointment that The Greens, in the persona of Adam Bandt, are chasing a rabbit down a bolthole by trying to score political points against the Labor government. Much more worthy of highlighting would be the mechanisms I mentioned in my post on Saturday which Bob Brown himself has sponsored, through amendments to the Qantas Act, which might usefully and fruitfully challenge corporate power.
By contrast, the argument that the bargaining period should be continued (and the Dr_Tad corollary that this would necessarily lead to victory for the unions) seems to me not making the perfect the enemy of the good, but the unachievable the enemy of the ambivalent. That ambivalence is best ended by continued political action around the central issues at stake here: the need to rein in and constrain aggressive market capitalism in the interests of workers and the public good.