Why and how the Fair Work Commission’s cuts to Sunday penalty rates can be Defeated.

above: Former Australian Manufacturing Workers' Union organiser, Don Sutherland

   
In this article guest writer Don Sutherland argues the case for a strategy to reverse the decision of the Fair Work Commission - promoted by Employers - to slash Penalty Rates for Hospitality and other workers.  He foresees it will have to be a long struggle led by workers - and workers cannot just sit back and depend on the Parliamentary Labor Party.  It is a strategy which - amongst other things - will involve targeting specific employers so they do not take advantage of the FWC's decision and exploit their workers.

by Don Sutherland, 25/2/17

Last week Australia’s industrial “umpire”, the Fair Work Commission, legalized a big cut to penalty rates for Sunday work for Australia’s lowest paid and most vulnerable workers in precarious work. (Click here and click here for the official summary of the decision.) Implementing the cuts is not compulsory. Anyone who thinks neoliberalism is dying needs to take a deep breath and step into the real world.

Like many others across the union movement and beyond I am very angry on several counts with this decision. Above all it does great harm to the lives of thousands of workers (click here for example), even though it will increase the take home profit of their employers.

There is a lot of material being posted in both mainstream media and in many sources across social media about why this decision is bad, some of it before the decision was handed down and of course a lot since. This article does not add to that.

Rather I focus on ideas about how the workers and union movement can respond.

How should the workers’ movement respond?

In my view not just with anger, but with a widely, deeply discussed and developed strategy to win the reversal of the decision or to prevent its actual implementation.

I am against a “strategy” based on immediate anger that sets our movement up for an urgent, satisfying day out and another “glorious defeat”. And I am also against a defeatist walk into the arms of the ALP as the heroic solution.

Rationale for a strategy

This Full Bench decision of the Fair Work Commission (FWC) comes out of an Award review that is required by the Fair Work Act (FWA). The Award review is very much an industrial relations club exercise. The FWA review involves either union peak bodies or employer peak bodies putting to the FWC ways in which Awards should be changed, with the capacity for others, especially governments and political parties, to join in. The parties present their claims and counter claims, then provide evidence in an increasingly judicial process that involves “expert” research and / or witnesses. There is not much industrial organising that goes on in support of union claims or counter claims these days.

In this current review all Awards are under the microscope. The focus in these particular Awards for workers in hospitality, pharmacy, fast foods has been on their penalty rates, especially the penalty rate paid for working on Sunday.

Employers in the industry and beyond have over several years invested big money and resources to convince the FWC to agree to cut penalty rates for Sunday work. They have been supported by the Murdoch press, a big posse of commentators from right wing think tanks, and all major employer organisations. The union movement has been the major source of opposition. Originally, employers wanted cuts to all penalty rates but decided for a strategic reason to focus on Sundays. Do not doubt that their “victory” last week to get Sunday rates cut is a foundation for a renewed assault at some time in the future for further cuts into both Sunday and Saturday rates and public holiday rates.

While the employers were investing big in their own way to achieve their victory, the workers’ effort – mainly through their unions – was valiant and well-intentioned but puny in comparison. It was entirely defensive, and accepted the rules of the Commission and the Fair Work Act.

The employer strategy successfully used prominent Labor politicians, some of them willingly, and ex politicians (most notably perhaps Martin Ferguson, formerly a President of the Australian Council of Trade Unions).

The employer strategy relied very much on today’s working class  historic memory loss  about what an Award actually is. Nothing significant has been done by unions to counter this with worker education. Australian unions, generally, have opted to devote most resources to enterprise agreements as the vehicle to protect and improve wages and conditions.

Remember, the employers originated and escalated this war on living standards, not the Fair Work Commission.

This very bad outcome is a reflection of the current balance of power between Australia’s 21st century capitalist class relative to that of the working class.

That is the situation that our strategy must change.

A working class based approach to our strategy

Can we build a strategy, loaded with mindful militancy, that can reverse this decision and also the whole current momentum against working people? (Facilitated in the bosses’ favour by the Fair Work Act, e.g. lockouts, agreement cancellations, and the new Building Industry Code to be enforced by the construction industry’s own industrial police force against construction workers and their unions.)

Of course we can. Here are some ideas.

The first big strategic decision for all union leaders no matter what level of the union movement we are active in: should we leave the reversing or whatever of the decision to heroic leaders, those at the “top” of the union movement and especially those in the ALP and the Greens in the parliament? Will calls to the government for the government to change the statute re-build our numbers and our power?

Or, should we return en masse to a conviction that the workers in these industries, and their brothers and sisters in others, can grow together as a socio-political force to reverse the decision themselves through their own industrial and political action?

The union movement at all levels must, absolutely MUST, embrace this second approach. Why? Because we must see workers of the twenty first century as capable of learning to struggle for their objectives not as objects whose conditions of existence are decided for them by elites, well-meaning or otherwise?)

That still means lots of education work and lots of communication that is educational (not cheap slogans or cute and clever memes,) leading to days of action on carefully selected dates. Days of action can be seen as the building blocks to more serious forms of action, including a national strike that can decide the struggle in favour of the workers.

Industrial strategy leading the way

The Commission is now waiting for submissions from the parties about the timing and process for phasing in the new reduced rates. Depending on each award, the critical dates seem to be in late March and early May.

After that the Commission will set dates for the start of the new reduced rates, probably later this year.

So, for example, this year these union / workers days of action might be 2-3 days before or on the day of the “submissions” hearing and then again 3 days before the start date.

Remember, employers can chose not to reduce rates. Embedded in these days of action there must be a workplace, public, social and political demand that each individual employer NOT implement the decision, but infused also with basic education and learning about “what is an Award”, “who are the employers”, “what is their strategy”, and “what is the Commission”. (Of course, many employers will try to “stay sweet” with their workers by telling them that it’s not their fault and they have no choice but to implement it.)

To the extent that it is necessary, a secondary level of campaigning in these 2 periods might help reinforce worker pressure on MP’s to come out at a local level to urge local employers not to implement the decision.

How long will it take to win – the trajectory for winning?

The second big strategic decision is a notional time frame that this campaign will take 2 to 5 years to win. It would be nice to win sooner but expectation that we can – in my view – misjudges the power of those who want this decision against the current power of those of us who oppose it.

We need time for education work and union growth organising to build the power to win. We do not have it right now, just the same as the employers did not have enough power to win their objective in 2007. The employers have understood strategy much better than us and have been ruthless enough against working people and their unions to stick to their strategy and be flexible in applying it.

We have to be every bit as cold and calculating as they have been and more.

Therefore, these days of action MUST be educational and  must be seen as building blocks to very big and powerful actions in the future that will be more decisive.

Our strategy will have to escalate over that 2-5 year period in the spread and depth of awareness among the workers immediately affected and those who will experience the flow on effects of it.

A strategy of this type must culminate with the consequence of economic pain for the employers who wanted this decision and who decide to implement it.

The next award review will be in 4 years or so, possibly less. That is the moment for the first “really big culmination” of our strategy in which employers can face the prospect of real economic consequences for their actions.

Within it there is the opportunity for the union movement to actively regrow from within the 21 st century working class, basing that on education-driven organising of both union members and potential members.

This decision to cut penalty rates is one element of ruling class momentum against all workers … the whole of the working class.

We can add to that the employers threat to re-locate operations to off shore low wage havens, use of lock outs during bargaining, demand for major concessions in enterprise agreements, and refusing to bargain for any improvements about job security or wages or safety, employer applications to cancel agreements and drive their workers back to the minimum wages and conditions in Awards, penal powers against any workers who take industrial action that is not approved by the FWC, and the government’s new Building Industry Code policed by the building industry commission. This is a considerable array of power for employers that is facilitated by the Fair Work Act.

Penalty Rates Plus

Genuine working class power can be built to demand at the next Award review and even before not just the restoration of current penalty rates but also a significant increase in the minimum Award rate, and automatic casual conversion after 3 months for those who want it.

These issues are relevant to all other Awards as well. We are talking about common, multi industry actions to take on common big employment problems.

This will be a campaign for all workers because the huge gap between award rates and union negotiated agreement rates is contrary to the fundamental rationale for unionism, and should not be acceptable to any unionist.

The focus of the whole movement must turn steadily (although not absolutely) to AWARDS and away from enterprise agreements.

Finally, this “ordinarily people” rooted strategy will require that the Fair Work Act (including its penal powers against workers) be defied, and probably broken, and ultimately genuinely re-written for workers’ benefit.

That’s not a reason not to do it but it is a reason for a lot of educational work in preparation.

This article was also published at Don's blog - which can be found here: 

https://donsutherland.wordpress.com/2017/02/25/why-and-how-the-fair-work-commissions-cuts-to-sunday-penalty-rates-can-be-defeated/

Unpublished Letters from a Left Activst

What follows are another series of letters I have written to the ‘Herald-Sun’ and ‘The Age’during the December 2016 to January 2017 period.   None were published.  But I hope it sparks some thought and some debate amongst readers here at Left Focus.

Topics include 'Cultural Marxism' , Labor Policy, Pensions,  Green Energy and who pays?,  Islam and Education, Female Genital Mutilation,  What to do about Poverty?, and 'Bolt and Panahi need to Work Out Which Side they are On on Civil Liberties.....

Dr Tristan Ewins

Hysteria on ‘Cultural Marxism’

"P.Jones (Letters, 29/12/16) again raises the spectre of ‘cultural Marxism’ ; evoking the remnants of Cold War era fear of those movements bearing the name of Karl Marx.  But ‘Critical Theory’ and the ‘Frankfurt School’ (the proper names of the traditions referred to as ‘cultural Marxism’) are radical intellectual traditions which have very little to do with the Totalitarianism and Stalinism which once prevailed in Eastern Europe and elsewhere.  Critical theorists promoted personal freedom, dignity and fulfilment ; and they rejected attempts by Stalin and his successors to crush the independence of radical thought.  Some critical theorists have also promoted the peaceful transition to a democratic socialist order through mutual engagement based on the powers of human reason.  They also subjected past Marxism to criticism on the basis that radicals needed to be open-minded about confronting past errors.  Considered in context, ‘cultural Marxism’ does not deserve ‘the bogey status’ imposed on it by Conservative intellectuals and others who either do not really understand its content ; or otherwise want to distort perceptions in order to create fear and prevent change."

Labor needs a Stronger Agenda ; and not only Defensiveness on Company Tax

Responding to ‘The Age Letters 7/1/17’: While Labor’s opposition to Company Tax cuts is welcome, Australia needs a more robust reform agenda: improving our social wage and welfare state, and providing for vital infrastructure.  Hence a National Aged Care Insurance Scheme to roll back regressive user pays;  and improve quality of life for our most vulnerable. Superannuation tax concessions for the wealthy and the upper middle class could be cut, bringing in tens of billions.  In addition to Capital Gains Tax and Negative Gearing reforms, Australia could also look to phased withdrawal of Dividend Imputation. Reversion to a 75% credit alone could save over $5 billion/year.  Because of their progressive potential, reform of income and other progressive taxes (eg: Medicare-style Levies) should not be ‘taboo’.  Presumed ‘pull factors’ regarding Corporate Taxation can neglect the impact of education and infrastructure in attracting investment.  Infrastructure privatisation increases cost-structures.  And there are economic and moral dilemmas associated with ‘corporate welfare’. Citizens and taxpayers effectively subsidize corporations benefitting from services and infrastructure ; because of a more regressive tax mix (flatter, and/or focusing on consumption) and also indirectly through austerity. Poverty and inequality also affect consumption power, damaging the broader economy.  

The Problems with Tightening Pension Eligibility

Frank Stubbs (Herald-Sun Letters, 7/1/17) argues “the pension is not a right” ; that it should only go to the most needy.  But there are problems with this argument.  In the 1980s Labor introduced superannuation while means-testing pensions.  This enabled a focus on ‘targeted welfare’ ; where we could have both a regime of low taxation – and necessary supports for the genuinely vulnerable.  Superannuation made all this possible.  But before this the Aged Pension was considered a right.  Primarily because people had paid their taxes their entire working lives – and had earned that security.  But “rights” must also be a matter of human decency ; such that we must not allow the vulnerable to struggle in poverty – even if they cannot work.  The problem with superannuation is that it might increasingly see the marginalisation of the Aged Pension, and those dependent upon it.  The consumption power of low income Australians is also affected, harming the economy. In the future conservatives may demand further tightening of pension eligibility; and that would marginalise pensioners, giving rise to further self-interested cries from business, the middle classes, the wealthy -  for pension cuts.   There’s a potential future social cost to cutting pension eligibility.

AN Important Question on Green Energy:  Who Pays?

In response to Matt Johnston (13/1): It is necessary to take action on renewable energy to respond to global warming.  But an additional concern is “who pays?”  Currently, renewable energy is more expensive.  And while many households are taking up ‘micro-renewable energy’, a great many others are ‘locked out’ because they simply cannot afford the investment. But as middle class families opt for micro-renewable energy, this damages the ‘economies of scale’ of the legacy centralised energy industry.  The cost of ‘poles and wires’ and other infrastructure is divided amongst a smaller consumer base.  So consumers on low incomes are forced to pay more.  This is worsened by privatisation: which means providers will pursue profits and avoid cross subsidies for the financially disadvantaged. “Micro-renewables’ are probably the way of the future: but in the meantime governments need to take stronger action to ensure financially disadvantaged customers don’t bear the cost.  Subsidies of various kinds need to negate the entire effect on affordability for low income customers during this transitional period.  (Until technology improves and prices fall)  The timeframe depends on the priorities of government and the progress of research and development.

Responding to Kevin Donnelly on Islam and Education

Kevin Donnelly (Herald Sun, 2/1/17) criticises Islam as ‘inherently violent’ while defending ‘the Western tradition’ against its apparent detractors on ‘the Left’.  Some things need to be stated in response to this.  Firstly, it is partly a matter of convenience.  The ‘West’ supported the Mujahedeen (Islamic fundamentalists) against the Soviets during the Cold War, despite what this meant for women in Afghanistan. Further, Islam is diverse – and potentially open to reform – perhaps like Christianity and Judaism have been.  (partly because of the historic intersection of Christianity with liberalism) In some places ‘a (liberal) Islamic reformation’ may actually be a good thing. (further reform of the Roman Catholic Church would also be good) But in the meantime we should not promote notions of ‘cultural superiority’ to justify interventions which are really geo-political in nature. Also when we defend ‘the Western tradition’ and ‘the Enlightenment’ we should be clear what that means.   It means supporting free and critical enquiry.  The consequence of this also must be that education is not only for ‘fundamentals’ of numeracy and literacy.  There is a crucial place for the Humanities and Social Sciences – in combination with a progressive civics agenda – which promotes political literacy and active citizenship.  Authoritarian responses to protest and civil disobedience are counter to the freedoms we celebrate which originated with the Enlightenment – and the liberal and democratic revolutions that followed.

Responding to FGM:  How Prevalent is it in Australia?

Rita Panahi (16/1) makes some points about the most reactionary practices  Islam, mentioning child brides, ‘honour killings’, and female genital mutilation. Despite allusions to a so-called ‘regressive Left’ any Leftist worth their salt could not help but oppose those practices.   Of course we must support women and girls who oppose and fight against these practices. But there are other complications. Firstly it is unclear how widespread  FGM is in Australia.  In 2010 the ABC reported that 700 cases were presented to the Melbourne Royal Women’s Hospital.   But in 2011 the total Australian Islamic population (all creeds considered) was nearing half a million.  So its important to keep perspective: to support the rights of women and girls ; but also to be aware of possible ulterior motives. Strong cultural differences can be exploited to justify geo-political and strategic objectives.  We need to keep cultural difference and strategic/geo-political issues separate so as to avoid confusion and remain clear about the real motivations and interests behind our foreign policy.

References:

http://www.abc.net.au/news/2010-02-06/female-circumcision-happening-in-australia/2594496

https://en.wikipedia.org/wiki/Islam_in_Australia

What Must we actually Do in Response to Poverty?

In the Herald-Sun letters section recently there has been some good discussion of poverty. But the problem is on such a scale that it will never be overcome through charity ; and we need action - not only talk. Only government can provide the resources for a definitive solution. That calls for a stronger, fairer welfare system for disadvantaged groups, the elderly and the unemployed ; a fairer, progressive tax mix ; and labour market re-regulation at the lower end.  It also calls for a stronger social wage ;  including more funding for public health and education ; as well as for public housing and emergency accommodation, and energy and water subsidies.  It might also include better-subsidised public transport and internet access. (these are now essentials - for instance it is virtually impossible to search effectively for work now without them)  It could include an active industry policy which offers ‘flexible’ work favourable to employees’ needs ; preventing those such as retrenched auto workers being relegated permanently to unemployment.  And it could involve greater flexibility for pensioners to take on casual or part-time work without foregoing their pensions ; hence avoiding poverty traps.

Bolt and Panahi Need to work out where they Stand on Civil Rights

Andrew Bolt claims “Leftists hate our freedoms” while Rita Panahi gives thanks for liberal freedoms she enjoys in Australia compared with theocratic Iran.  But at the same time Rita Panahi has dismissed civil libertarians as ‘do-gooders’.  And for all his talk, Andrew Bolt has never had anything to say against anti-protest laws introduced by past Liberal governments in New South Wales and Victoria. That includes ‘move on’ laws that criminalised freedom of assembly ; and laws in NSW which could see protestors jailed for several years for civil disobedience.  As well as Federal laws criminalising ‘whistle-blowers’ who reveal details on the treatment of refugees.  Journalists like Panahi and Bolt need to decide what side they are on when it comes to liberal and democratic rights.  It is true that parts of the Left qualify freedom of speech where they believe that speech could be socially harmful.   Other Leftists are nonetheless concerned at possible precedents which could help result in a far more general retreat of liberties.  And the ‘pressure cooker’ effect of suppressed (and sometimes manufactured) grievances which can explode with the rise of populist, far-right-wing movements.  Reality is more complex than you would think reading Panahi and Bolt.