The post-pandemic case for unions

Anthony Forsyth, RMIT University and Labour Law Down Under Blog – an edited version of this post was published in The Age and Sydney Morning Herald on 15 June 2020: Pandemic reunites a not so odd couple

Like its counterparts in many other countries, the Australian labour movement has faced considerable challenges in recent years.

Reflecting a long-term trend of membership decline, union density in 2018 was just 14.7% of the workforce.

Under the conservative Coalition Governments since 2013, unions have been subjected to various forms of coercive state power.

The Royal Commission into Trade Union Governance and Corruption (2014-15) planted the seeds for the Government’s Ensuring Integrity Bill. This fiendish legislative proposal to expose unions and their officials to the sanction of removal from the formal system of workplace regulation, for minor breaches of the law, was rejected by the Australian Senate late last year.

In the face of these attacks, Australia’s unions were rejuvenated under the leadership of Sally McManus, who took over as Secretary of the Australian Council of Trade Unions in 2017. She commandeered a confident, loud campaign to ‘Change the Rules’ regulating collective bargaining and employment relationships, which unions considered to be ‘broken’ and failing to serve the interests of workers.

However that campaign, and the redistributive economic agenda of the opposition Labor Party, were rejected by Australian voters in the May 2019 federal election.

By February this year, just before the COVID-19 shock fully hit Australian shores, our union leaders were most likely only just beginning to turn their attention fully to the difficult question ‘where to next?’.

Then from mid-March, as businesses such as cafes, restaurants, cinemas and other public venues closed in response to government measures to contain coronavirus, the ACTU and key unions became central players in the adjustment of the national economy.

Almost overnight, the ACTU went from having no direct dialogue with the federal Government, to a position where McManus was in daily contact with Industrial Relations Minister, Christian Porter.

Former ACTU Secretary and Labor politician, Greg Combet, was appointed to the National COVID-19 Coordination Commission, to advise the Government specifically on employment, industrial relations and manufacturing.

The Government dropped its overt hostility to the labour movement, recognising that the union leadership would be instrumental to charting a course through the pandemic.

Before long, joint applications between union and business organisations were made to the Fair Work Commission, to vary awards covering hospitality and clerical workers. Unions became willing participants in the temporary relaxation of employment protections so that restaurants could reduce operating hours and shift to take-away only food service, and vast numbers of office staff could work from home.

Amidst all this cooperation, though, unions have played a vital role as the advocate of workers in the shutdown period in at least two principal ways.

First, they have forcefully projected the voice of working people when it has been most needed. This was clearly demonstrated in the pressure applied by unions to overcome the Government’s resistance to implementing a wage subsidy scheme.

The sight of thousands of people queueing outside Centrelink offices (administering unemployment assistance), once business shutdowns intensified, demonstrated the need for income support measures. The Government resisted, even after the UK introduced its 80% wage subsidy.

A vigorous union campaign, with the support also of major business groups, finally saw the Australian Government’s implementation of the JobKeeper program which provides workers stood down (i.e. furloughed) or on reduced hours with A$1,500 per fortnight, around the level of the national minimum wage.

Since its introduction, unions have kept up the fight to extend JobKeeper payments to those left out of the scheme: over one million migrant workers, many thousands of short-term casual employees, university staff and those who have the misfortune of being employed by a company controlled by a foreign government (for example, catering and retail employees at some of the airports).

Secondly, unions have been at the forefront of protecting workers from unfair and arbitrary treatment by employers throughout this crisis. There have been so many examples. Very yearly on, as the supermarket supply chain came under intense pressure from panic buying, the United Workers Union held a stoppage at a Coles supermarkets cold-storage site over safety concerns. This action was necessary to ensure workers were protected through basic measures such as the use of hand sanitizer and observing social distancing. (see: https://jacobinmag.com/2020/4/united-workers-union-australia-labor-morrison)

The ACTU has brought a claim in the Fair Work Commission to obtain paid pandemic leave for health and community care workers required to self-isolate. Unions have also been vigilant in contesting the exercise of managerial power, which was greatly enhanced by amendments to the Fair Work Act which accompanied the JobKeeper scheme. These included the ability to reduce workers’ hours and change their duties. The Victorian Trades Hall Council quickly set up a ‘JobScammer’ website so workers could report abuses, such as the unwarranted cutting of hours by some businesses and (even worse) other employer pocketing part of their employees’ JobKeeper payments.

The Independent Education Union has successfully challenged unnecessary stand downs of non-teaching staff by wealthy private schools. The aircraft engineers union has taken court action against stand downs by the national carrier, Qantas, while an alliance of other airline unions failed in a bid to compel Qantas to allow stood down workers to access their sick leave.

The Transport Workers Union has continued its push, developed over the last five years, to protect vulnerable workers in the gig economy. Food delivery workers and rideshare drivers have faced the double risk of potential infection from coronavirus, and the absence of sick leave or other benefits arising from platforms like Uber and Deliveroo misclassifying them as self-employed contractors. This legal fantasy, buttressed by interposed corporate entities and contractual gimmicks, is being contested in several cases initiated by the TWU.

Unions haven’t always got it right. The National Tertiary Education Union, of which I’m a member, thought it had landed a Jobs Protection Framework with the universities, essentially agreeing to pay cuts in order to avoid redundancies. However the union had not taken the membership with them, and many Vice Chancellors backed out of the deal. This has added to the uncertain situation facing the nation’s universities.

As social and economic life starts to return to ‘normal’ in Australia, the focus of unions is now shifting to the safety aspects of going back to work. The ACTU is calling for businesses to ensure they have ‘COVID-aware workplaces’: proper physical distancing and cleaning, personal protective equipment, and other physical and mental health measures.

There are pitfalls in the new-found acceptance of unions on the national stage. A few weeks ago, the Government included the union movement in an industrial relations reform consultation process which will conclude by September. The agenda for change is largely that of the employers: unwinding the supposed ‘complexity’ of awards, removing recently-imposed judicial constraints on the engagement of casuals, and reducing the technical requirements for approval of enterprise agreements. By participating, the unions risk being co-opted into – and bestowing their own legitimacy on – an anti-worker legislative reform program.

Overall, however, the COVID-19 pandemic has seen Australian unions re-establish their place as legitimate – if not essential – partners in national policy formulation. This must be seen as a beneficial outcome of the crisis for the labour movement. It positions unions strongly to exercise much-needed influence in the post-pandemic world of work, where the full effects on workers are probably yet to be felt. Unemployment will worsen, and in September, the JobKeeper scheme will end along with a temporary increase in Jobseeker unemployment benefits.

In addition to the largely defensive position which unions have been forced into by the pandemic, they will need to get back onto the offensive. The core union work of improving wages and conditions through collective bargaining has largely been frozen in recent months. The project of bargaining has to be enlivened again (with or without the legislative changes demanded in the ACTU’s Change the Rules campaign).

Unions may find that their bargaining capacity has been emboldened by the innovations in organizing activity forced on them by the recent experiment in isolation. Virtual town halls and digital picket lines have re-engaged the membership of many Australian unions during the lockdown.

In economic debates that will be framed by large-scale unemployment, an effective voice for workers will be critical to challenge the business mantra (already emerging in this country) that employment protections must be sacrificed to create jobs.