Speech notes for a presentation to the International Employment Relations Association Conference 2016
The Australian Institute of Employment Rights takes a rights-based approach to workplace relations. Our work is underpinned by the Australian Charter of Employment Rights: 10 principles found in international law, common law and the Australian industrial relations tradition that we believe form the foundation of fair and decent workplace regulation and practice. These principles include good faith; work with dignity; fair minimum standards; a safe and healthy workplace; freedom from discrimination and harassment; protection from unfair dismissal among others.
Today, I want to focus on two of the Charter principles: freedom of association – the right of workers to act collectively in their economic and social interests; and workplace democracy – the notion that workers have the right to participate in the making of decisions that have significant implications for themselves or their workplace. These two rights – like all of them – are interrelated.
As Mark Irving writes in our book on the Charter: “The right to form and join a trade union is a crucial human right. It forms the foundation on which many other rights are built. The right to freedom of association is recognised by the UN Universal Declaration of Human Rights. It is also enshrined in Article 2 of the ILO Freedom of Association and Protection of the right to Organise Convention 1948.”
Workplace democracy rights have also long been recognised as a feature of the essential dignity of the worker and is an application of industrial fairness. Such rights are also protected by various international human rights and labour rights instruments, particularly in relation to restructuring decisions. Anthony Forsyth has noted, “These rights have come to b enjoyed by many Australian workers from the early 1980s but have increasingly been watered down or removed over the last decade.”
There is of course good reason why freedom of association has such a prominent place in foundational human rights instruments. The ILO was established at the end of the horrific slaughter of WWI and the acknowledgement that “universal, lasting peace can be established only if it is based on social justice.” And that social justice requires the ability of people to pursue their material well-being in conditions of freedom and dignity, economic security and equal opportunity. The ILO’s principles were restated at the end of WWII.
I am not one for crude historical analogies but there are there are a number of compelling trends that I think require us to revisit how our laws and regulations allow for and enable freedom of association and workplace democracy and the social and economic consequences of restricting these rights.
Trends such as:
- Growing wealth and income inequalities in industrialised economies
- Wages share of productivity gains declining as against profits
- Low wage growth and the growth of low wage jobs
- A significant gender pay gap that shows no sign of closing.
There are further challenges from the changing nature of the workforce and the growth of non-standard work; casualisation; the fragmentation or fissuring of work through mechanisms such as subcontracting; franchises; use of labour hire and independent contracting.
John Buchanan has said that “Employment is now the bearer of inequality and unfairness.”
These trends aren’t accidental. They are a consequence of policies pursued by our governments. Policies that include those now referred to as neoliberalism.
Neoliberalism often understood to mean deregulation, smaller role for the state, and more recently as austerity measures – balancing budgets by slashing public spending.
There is a fair amount of recent commentary now suggesting neoliberalism has failed in relation to its articulated goal of engendering economic growth. The IMF in a paper released last month titled “Neoliberalism Oversold” concluded that “the costs in terms of increased inequality are prominent. Such costs epitomize the trade-off between the growth and equity effects of some aspects of the neoliberal agenda.”
The report went on to say that “Increased inequality in turn hurts the level and sustainability of growth. Even if growth is the sole or main purpose of the neoliberal agenda, advocates of that agenda still need to pay attention to the distributional effects.”
In relation to the noted increase of inequality, the IMF and OECD have reached similar conclusions to those that led to the ILO being founded: inequality matters for social cohesion and economic prosperity and workers acting collectively in their economic interests is an essential factor in ensuring greater degrees of equality and prosperity.
Paul Mason in is book Postcapitalism argues that rather then economic growth in fact the goal of neoliberalism was the destruction of labour’s bargaining power. He writes:
Because today’s generation sees only the outcome of neoliberalism, it is easy to miss the fact that this goal – the destruction of labour’s bargaining power – was the essence of the entire project: it was a means to all the other ends. Neoliberalism’s guiding principle was not free markets, nor fiscal discipline, nor sound money, or privatisation and offshoring – not even globalisation. All these things were by products or weapons of its main endeavour: to remove organised labour from the equation.”
And by that measure neo-liberalism has been relatively successful. Union density is around 11% in the private sector in Australia.
While unions retain a certain institutional power in the workplace relations system it has been significantly curbed over the last few decades. Collective bargaining is focused at the enterprise level with restrictions on what can b bargaining about and lawful industrial action restricted to the bargaining period. Access to arbitration is minimal. Awards contain fewer collective rights. Workplace democracy rights are generally limited to consultation in limited circumstances.
This part of the neo-liberal agenda shows no sign of stopping. We just had an election called on the basis of the parliament failing to pass legislation to re-establish the Australian Building and Construction Commission. The Prime Minister calling the failure to further infringe on the human rights of building workers as “urgent economic reform”. This occurred in the shadow of the Royal Commission into Trade Unions, with the government announcing an intention to implement 48 of the 79 recommendations. Although the election result putsin doubt the ability of the government to legislate its agenda it doesn’t look like stopping its pursuit of unions.
This is not to say that unions themselves have been blameless in the difficulties they face. We didn’t really need a Royal Commission to find out that some union officials put their personal interests above those of their union. Union members have the right to expect their union officials to not only observe the rules but to carry out their duties ethically and in the best interests of members. Union practices that give rise to perceived or indeed actual conflicts of interest demonstrate the need for better internal democracy within unions.
But the fact remains that workers acting together in their collective interests – as members of unions or in other ways within their workplaces – is an important part of providing economic security.
There have been some illuminating recent examples highlighting the lack of voice workers really have when it when it comes to protecting their interests.
55 Carlton United Brewery employees were recently fired and subsequently offered their jobs back on less pay; Bluescope Steel is suing the Wollongong AWU branch for millions after an unauthorised strike; the FWO taking action against NUW after members took unauthorised industrial action to protest the use of labour hire replacing permanent employees at a Woolworths’s distribution centre.
At the same time as we are seeing the other attempts to restrict freedom of association or to put it another way – to contain collective threats to capital. We have seen the governments of NSW, Tasmania and WA and previously Victoria introduce anti-protest laws directed at protecting business interests at the expense of broader social interests.
The target of these laws has been the growing protests against harmful extractive industries. In NSW, the anti-CSG and anti coal mine movements; in Tasmania the on-going dispute about mining and forestry in precious forests and wilderness area; and similarly in WA these laws are concerned with restricting protest in order to protect commercial interests.
The Human Rights Law Centre has condemned these laws arguing “Governments across Australia are eroding some of the vital foundations of our democracy, from protest rights to press freedom, to entrench their own power and that of vested business interests”
There is a connection between growing inequality, social alienation, the perceived crisis in our democracies and government policy and decisions that privilege business interests over the interests of workers and the community.
What to do?
Firstly, go back to first principles. The reason freedom of association is a human and workplace right is because of the inherent power imbalance between workers and employers. And it is the question of power that is at the heart of workplace democracy and indeed democracy itself. As Justice Higgins said in 1922, “The power of the employer to withhold bread is a much more effective weapon than the power of the employee to refuse labour.” Acknowledging and addressing this power imbalance should guide our approach.
Furthermore, as Joseph Stiglitz has said democracy in the workplace is an essential element of democracy itself. Democracy can be understood to encompass people most affected by decisions being involved in the making of those decisions.
This goes for unions too. Unions must be fully democratic and be vigilant in ensuring they are acting in the interests of their members.
We can easily identify some industrial relations reforms that will better reflect freedom of association rights, particularly to collective bargaining and industrial action, in the context of the changing nature of work. With the fragmentation of work we need to consider how to enable bargaining along the supply chain; bargaining within sectors of the economy and rights to industrial action following those broader rights to bargain.
We also need to be creative and imaginative in rethinking freedom of association for the twenty first century and in developing mechanisms and practices that provide workers with the ability to engage with and participate in management decisions that will affect their livelihoods.
Workers co-operatives are one example of a business model that can learn from. For an excellent discussion on workers cooperatives and workplace democracy, read Dan Musil’s Chapter in AIER’s latest publication, Employment Rights Now.
The Canadian Postal Workers Union offer another example where workers came together and developed a plan to revitalise their industry and make it a leader in the new renewable energy economy.
If as a society we do not act to restore freedom of association and workplace democracy our workplaces and our society overall will be worse off.