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/

A Chilean Miracle - but accompanied by Sober reflections

In this reflection, AMWU industrial officer Don Sutherland celebrates the rescue of 33 Chilean miners. But these sentiments are accompanied by a sober consideration of Chilean political history: of the rights of workers in Chile today, and of a Chilean government which he sees as the inheritors of Pinochet's terror, and callous disregard for workers and the poor.

Dear Friends,

Along with many others I wept with joy and admiration watching the remarkable rescue of the 33 Chilean miners.

Since the mid 70's I have been friends with a number of Chileans and their families who have lived in Australia since then. I met them because they were poltical refugees from the bloody military dictatorship of General Pinochet established by a military coup in September 1973. As political refugees they were organisers and supporters at the level of their unions and communities of the democratically elected government of President Salvador Allende. Thousands dead. Tens of thousands, even more, scarred physically and mentally.

I have talked with some of my Chilean friends and shared their joy and pride in this achievement. We remember how leaders and members of Chile's mining unions were among those arrested, tortured and executed by Pinochet's military and civilian thugs. The USA watched over and advised on the strategy for the coup, especially the then Secretary of State Henry Kissinger.

The fascist dictatorship of Chile provided it's people as the crucible for the first neo-liberal economic program ( followed soon after by Thatcher and Reagan) massive cuts to the social wage, extensive privatisations at basement prices to the big corporations, many of them from the USA). What we know now as neoliberalism could only have been born out of the barrel of a gun and beneath the scream of the jet bombers blasting the Allende government to death.

Our union - the AMWU - played a great role in the solidarity movement in support of the Chilean people, the refugees and for the restoration of democracy, including high risk deputations to political prisoners and industrial action in support. (I have more on this for anyone interested.)

The current President of Chile - the billionairre Senor Pinera - and his government is the far right inheritor of Pinochet's legacy. This should never be forgotten.

John Pilger explains more in this article:

http://www.onlineopinion.com.au/view.asp?article=11111

He starts:

The accident that trapped the miners is not unusual in Chile and is the inevitable consequence of a ruthless economic system that has barely changed since the dictatorship of General Augusto Pinochet. Copper is Chile’s gold, and the frequency of mining disasters keeps pace with prices and profits. There are, on average, 39 fatal accidents every year in Chile’s privatised mines. The San Jose mine, where the men work, became so unsafe in 2007 it had to be closed - but not for long. On July 30 last, a labour department report warned again of “serious safety deficiencies”, but the minister took no action. Six days later, the men were entombed.

For us, the equivalent of watching Pinera and his Mining Minister greeting each rescued worker would be like watching John Howard, Peter Reith, Peter Costello and Tony Abbott doing so. It would make me sick to see it. And you also?

In Solidarity,

Don Sutherland
National Industrial Officer,
Australian Manufacturing Workers Union

above: AMWU industrial officer Don Sutherland

Election Reflections – Three perspectives - pls read and Contribute to the debate

above: Australia's next Prime Minister?

With the Australian election result ‘on a knife-edge’ there is a need to reflect on what has happened and analyse what went wrong. In Left Focus today we host three perspectives - one from a Left ALP activist (myself), another from AMWU organiser, Don Sutherland, and the last from Tim Anderson – who offers a non-ALP but Left perspective.

NB: If you enjoy this commentary  PLS join our Facebook group - to link up with other readers, and to receive regular updates on new material. see: http://www.facebook.com/group.php?gid=58243419565



First perspective: Tristan Ewins

To begin; the mining industry assault on Labor has laid bare the real workings of power in this country, and the fragility of our democracy in a meaningful sense. No grassroots or popular organisation could match the mining industry ‘fear war-chest’ that ran into the hundreds of millions.

And great sections of the media 'came on board' for this assault on Labor too. Often this bias is subtle: involving selective quotations, framing of debate or emotive language. At other times it is blatant. Even the ABC focused relentlessly for the first two weeks of the campaign on the 'leaks drama' . This focus was at the expense of policy and substance - where the ALP could have made up ground given the opportunity.

Everything Labor did, most of the media put a ‘negative spin’ upon it. For instance: former PM Kevin Rudd was ‘brought on board’ to sell the message that whatever voters thought of the ‘coup’, too much was at stake to elect a Liberal government. The ‘Rudd legacy’ was itself at stake. The idea was to put speculation about disunity and instability to rest: to show a ‘united front’. Instead we had commentary on Rudd’s body language, and more disruptive and damaging media speculation.

The work of media in a democracy should be balanced scrutiny and allowance for diverse viewpoints, including scrutiny of policy: not the pursuit of the most ‘entertaining’ narrative. Was this just something to do with Australian media culture – or something more sinister?

Many were disillusioned with Labor on climate change and refugees: but the vast majority of these would have defected to the Greens and not the Liberals.

In pursuit of a majority, Labor has been on the back-foot for decades, as shown on the issue of asylum seekers. (although for some much of the neo-liberal ideology has actually been internalised, and thus support for its tenets is not even seen anymore as a compromise)

Labor has to compromise to hold together a broad constituency marked by internal contradiction. The rise of the Greens means there is now room for alternative (Left) perspectives to be voiced openly and publicly – and thus influence the ‘terms of debate’. This could also translate into policy leverage in the context of critical and reasonably conditional support for Labor. But the broader support base now enjoyed by the Greens, and the imperative of maintaining the balance of power in the Senate, might mean the Greens also have to contain some of their most radical impulses. The Greens should also try and open lines of communication with the progressive Christian community in an effort to broaden their support base further.

Over the long term change is a matter of mobilising the social and economic forces to counter the dominance of concentrated private wealth; in the public sphere, civil society, and in an industrial sense. Being a voluntarist I don't see this as impossible. But this is no easy task given the realignment of class forces in this country over recent decades.  What I think is that we need to get unions, progressive NGOs and progressive political parties working together, pooling their resources and co-ordinating their efforts. These are the 'power resources' possibly available to us. Imagine a co-ordinated and determined effort here; including marginal seats campaigning; and efforts at establishing alternative media - especially where it's needed most.

Of course the importance of marginal seats in this country undermines the political leverage of most voters. The Greens are right in supporting proportional representation. But even despite our electoral system; ordinary people can achieve influence and power by organising and intervening: in their communities, their workplaces and in the public sphere. A participatory culture is part of the answer to monopoly media and ‘one way information flows’. Although many older Australians are not engaged with ‘new media’: so undermining the power of the monopolists could occur ultimately in the form of generational change.

The Libs also pretty much got away with their line on debt and waste without much media scrutiny. They blew these out of proportion grossly - especially debt - and we need continue the work in putting the record straight here.

It is extremely important: that despite what's happened we cannot afford to let the Right *determine the historical narrative*. We need to continue to *contest* this narrative vigorously, arguing the need there was for progressive stimulus, progressive tax reform, infrastructure investment: and how the ALP achieved positive outcomes here.

We need continue to emphasise that – based on their own statements - the Liberals would have seen us into recession had they been in government. Despite the outcome the ALP made up significant ground on the theme of 'economic management' during the campaign. There was a movement away from neo-liberal consensus - and the credibility of neo-liberal ideology - and we need to hammer this home as well.

In the long run contesting this narrative is amongst the most important challenges; because if we don't then Left and Centre-Left forces in this country will be on the back foot - and probably out of government - for a very long time.

We also need focus on so-called 'working class Tories'; 'Howard's battlers': It's unavoidable that some working people will be socially conservative; but we need a clearer appeal to economic and class interests to undermine this base of support for the Liberals.

In the election aftermath there are also other issues Labor must address.

The prospects of a minority Labor government are not yet ‘dead’.

Ex-National Bob Katter might hold the key to who forms government in Australia. We know he's a protectionist and so may try and use his position to get protection for Australian agriculture. But can he hold onto this in the long term? (any hung parliament will not last) This gives him incentive for a long-term deal with Labor.

What if Labor offered a long-term deal that ‘locks agricultural protection in’ for over a decade, delivers infrastructure to the bush, and supports Katter as Agriculture Minister so long as he remains in parliament? This in return for ongoing support, including observation of cabinet discipline. Other independents may also be swayed in return for regional and rural infrastructure - locked in for a long-term deal. Of course big commitments to rural infrastructure would impact upon the budget, and would necessitate progressive tax reform to finance. Cutting other programs to make room is not the answer.

The Greens should be offered something in return for their support also: and implementation of their proposed $4.3 billion dental health scheme could be a very good start. That and the $2 billion commitment they want for Education. Some compromise policy on climate change will also be necessary. Understandably - delivering on the environment is crucial for Greens credibility.

Finally there is the issue of post-election reprisals within the Labor Party.

Some will believe that Labor should have held off going to the polls until later in the year, or even until 2011. And we will never know now what would have happened had the parliamentary caucus given Rudd a window of opportunity to turn public opinion around. Had he resigned under circumstances of a voluntary agreement, the process would not have left such a ‘bitter after-taste’ as it did for many.

So some are pointing to the leadership change; others are questioning the quality of the campaign. And then there is the issue of state Labor governments in New South Wales and Queensland – where infrastructure privatisation split the ALP within, and left many wondering if state Labor in NSW and QLD stand for anything other than dividing the spoils of office. Certainly the intervention of the mining giants was crucial, comprising the real ‘turning point’. But the behaviour of the media – with sometimes-subtle, sometimes-blatant bias - was out of our control.

What’s crucial for the ALP now is that the process of reprisal and counter-reprisal not get out of control. For the immediate future – while there is still some prospect of a minority Labor government – there is a need for internal discipline to maintain credibility.

But there will also be a need for analysis and reflection after the issue of who forms government is decided. What’s crucial in this context is the development of a structured and ordered process: honest reflection, but also such inclusiveness as to maintain cohesion: planning and mobilising for the next election.


Second Perspective: Don Sutherland

First attempt at coherent thoughts re Australian federal election

10 months ago it was hard to imagine that the Rudd Labor government would not comfortably win a second term.

Why do we today have - at best - a hung parliament but with Liberals holding 2 more seats than Labor, and 4 undecided? An Abbott neo-con Liberal-National Party government will be a massive setback for working Australians and their families and for much of the broader population. On the other hand, this is a huge win for the mining companies, energy companies, employer organisations and tobacco companies.

This grim story is counterbalanced by the very significant and powerful swing to the Greens so that they will have the balance of power in the Senate, and will have one lower house seat for the first time, alongside of (it seems at the moment) a new green independent from Tasmania. Overwhelmingly, their policies are progressive on the environment (although there are some blindnesses there), industrial law, telecommunications, refugees and asylum seekers, green manufacturing development, and telecommunications.

I think a number of interactive factors contribute to this.

Since Copenhagen the dominant right wing faction of the Labor Party, in it's machine, in it's parliamentary wing and in the union movement have completely botched both strategy and tactics, and the major, decisive moments that come along in any campaign. The Rudd Labor victory of 2007 delivered a big swing in seats to Labor, but this was balanced by having very small majorities in a lot of new seats that made up their majority. Thus, Rudd Labor had certain vulnerabilities and almost every major decision, particularly since Copenhagen but not exclusively, exposed these vulnerabilities.

Second, both the commercial and public big media gave Abbott and the Liberals a very easy time. (For example, driving around yesterday, polling day, I listened to Australia's national public broadcaster running 2-3 stories that were very favourable for Abbott to one that was not negative, but very flat for Gillard. Many other examples.)

Third, the Liberal campaign was very coherent and consistent. It played lowest common denominator values and policies very well. The billionaires will be delighted.

Finally, the broader left that includes the left both in and outside of the ALP failed to effectively communicate with the mass of workers on the mining industry tax, asylum seekers and climate change.

I am mulling over this question: "How much does our increased effort in time and content in on line communication interfere with our capacity to win support through face to face dialogue?"

I ask this question as an active supporter of and participant in on line communication. Strong political economy awareness makes it very easy to work out that the original and re-negotiated mining industry tax is a very good thing for workers and the suburbs and townships that they live in.

It should never be forgotten that a genuine grass roots mass movement called the Rights At Work Campaign was the decisive factor in the defeat of the Howard neo-cons in 2007. For real prospects of progressive change in Australia, an improved movement of this character must now be re-built no matter what the outcome of the negotiations this week about the likely hung parliament.



Third Perspective: Tim Anderson


Creating the democracy we don't yet have

Unexpectedly, it seems to me, a great opportunity for social change has emerged. This might seem strange, with another neo-fascist on the verge of becoming Australian Prime Minister. However remember that real change comes from widespread social participation, over longer periods.

First of all, the problem has to be clear - both of our major parties serve a tiny corporate elite, which likes to play them off against each other, to discipline them. This oligarchy (tightly interlocked finance, mining, media and investment groups) likes 'change' amongst the administrators, but never allows them 'power'.

Despite its origins in trade unions, the ALP is institutionally committed to gaining administrative office, and that means Labor must cut deals with this oligarchy. If the Greens, in their enthusiasm to be'credible' with the big powers, start cutting such deals, they will be similarly compromised, as were the Democrats before them. This is a time for bold new ideas, not shabby deals crippled by electoral ambitions.

The August election was a strong statement against this shallow electoral politics. Disillusionment with the two right-wing parties has created an outcome where a few populist MPs and the Greens will have a chance to demand some institutional change.

That is not enough, but it is important. What about proportional representation in elections? What about wider constitutional change and accountabilities, for example including (i) prohibiting war without parliamentary consent (ii) meaningful Aboriginal rights instead of constant tokenism, and (iii) a wider set of citizens and workers' rights?

We must hear genuine voices for popular struggles. But how is it possible to have a 'new politics' through the old language? Such voices are not possible through the corporate media, which bombards us with trivia, consumerism and 'market solutions'.

We need new media, and we need democratic controls (e.g. mandatory community participation in media boards, public and private) on the existing media. We want to hear the new MPs talking about real issues.

We need platforms to raise and strengthen the popular demands – for public health and education, an end to our appalling wars, real environmental solutions, support for genuine social institutions and control of the corporate tyrannies.

There is, I think, an opportunity for this sort of new politics, in the aftermath of the August election. And there is room for a range of new voices, including the Greens, including the maverick MPs, but also including all those of us who have been disillusioned with conventional politics. If we don't participate, who will?