Jelle Visser's 'revitalisation' option is a viable way forward for unions - here's how

This week, I spoke at a Victorian Fabians event on ‘Organised Labour and the Future of Industrial Action’, with Carina Garland (Assistant Secretary of Victorian Trades Hall Council). This is an edited version of my talk.

In his 2019 paper for the ILO, ‘Trade Unions in the Balance‘, Professor Jelle Visser outlined four possible future for unions globally:

1. Gradual marginalisation – continuing membership decline and reduction in union power.
2. Dualisation of union representation – unions defend and resist where they’re strong, but non-union workplaces grow bigger.
3. Replacement – unions give way to other forms of social action and representation, including employer-driven union substitutes.
4. Revitalisation – unions regain vitality, expand beyond their current membership base and organise in difficult areas through innovative digital tools.

I firmly believe option 4 is possible, because I already see it happening.

But the future success of unions depends on how much they’re willing to adapt to the realities of the modern world of work.

First, how have unions been ‘beaten down’ over the last 30 years (to borrow from the title of former NY Times labour reporter Steven Greenhouse’s excellent book on US unions)?

• relentless employer hostility …
• often enabled by the state through anti-union laws
• new business models (like labour hire) through which employers distance themselves from responsibility for the workforce – and from dealing with unions
• casualisation and other forms of insecure work
• and the latest scam – the gig economy – an audacious inversion of our conventional approach to employment regulation (the starting assumption that if you provide your labour, the law provides you with basic protections).

In this context, the traditional union strategy of seeking to bargain for better conditions with a static employing business can’t (on its own) be relied on to deliver outcomes for workers.

While businesses morph into franchise structures and supply chains, the Fair Work Act requires unions to bargain enterprise by enterprise. And within that limited framework, the window for protected industrial action shrinks ever smaller.

These concerns were at the heart of the ACTU’s Change the Rules campaign. I agree that these fundamental weaknesses in our labour laws have to be fixed (see the list of fixes at the end of this post).

But even with the strongest legal support for the right to strike, unions will still confront the challenge of persuading a group of workers that it’s in their interests to take on their employer. They still have to sell the proposition that being a union member is worth it.

And that discussion now has to factor in the massive disruption caused by COVID-19. For unions, this is both a blessing and a curse.

The positive is: the need for unions, the value of collectivism, has never been more obvious. When an organiser is the only thing standing between you and a manager directing you to keep working – despite the risk of infection – unionism becomes a matter of life and death.

The stop-works organised by the United Workers Union at the Spotless commercial laundry in Dandenong, and distribution centres across Melbourne, have shown that workers will take industrial action to defend their most basic right to safety in the workplace (see Godfrey Moase’s analysis of the class impacts of the pandemic).

The downside of the pandemic is that it’s forcing unions into a mostly defensive position. The economic impact, including rising unemployment, is framing the emerging IR reform debate – giving business groups and the Coalition cover for more deregulation and erosion of workers’ rights. We need only look at this week’s legislation extending the JobKeeper scheme, which also hands powers to reduce working hours and other conditions to employers that don’t continue to qualify for JobKeeper.

In this environment, unions are hard-pressed to hold on to existing conditions. Employer complaints about the complexity of awards are being unduly amplified, while many businesses seek to vary enterprise agreements to freeze pay increases or reduce conditions.

The goal of improving wages and conditions through enterprise bargaining hardly gets a look-in.

Overall, I see the post-COVID setting as offering unions a lot of potential for rebuilding their strength and influence.

However, this will look very different from the past: the idea of returning to the days of over 50% union density is not realistic.

Even that – as a measure of union ‘success’ – has to evolve. Many unions have recognised that the traditional full-fee membership model doesn’t appeal to younger workers, migrant workers and many women – key groups that unions have to attract if they’re to remain relevant.

This is where Hospo Voice, Hair Stylists Australia (an offshoot of the AWU) and Game Workers Unite Australia (which works with the MEAA) are really significant – they are examples of re-inventing the very concept of a ‘union’, enabling workers to form different forms of attachment to a collective group that works for them, and organising digitally.  

So where does all this leave the core union project of winning new gains for workers – and building worker power?

It’s likely we’re going to be stuck with the Fair Work Act’s restrictive rules for bargaining and industrial action for a while yet. And the Fair Work Commission, with all its Coalition appointments, can only be relied on to interpret these laws in capital’s favour.

Given that, unions have to use a mix of traditional strategies – strikes and other forms of collective action – and innovative tactics including street protests, social media campaigns and consumer boycotts.

Some of the most effective union campaigns in recent years have done this – for example:

• The ETU’s picket at the CUB Abbotsford brewery in 2016, successfully overturning an outsourcing decision which left maintenance workers applying for their own jobs at 65% less pay – the picket was bolstered by boycotts of VB and other CUB beers on Facebook and by supportive pubs across Melbourne.

• The AMWU’s #streetsfreesummer campaign in 2017, getting the public behind opposition to Unilever’s attempt to terminate the enterprise agreement covering manufacturing workers at the Streets ice-cream plant in western Sydney. The 3-week boycott engaged 1.5 million users on Twitter, leading the company to back down and put up a fair replacement agreement.

Other union successes have come from a greater emphasis on strike action, with a parallel media and social media campaign playing a less prominent role:

• The NUW’s protected action for a new enterprise agreement at Chemist Warehouse in March last year – winning significant inroads into the company’s misuse of labour hire (around 70% of workers in its distribution centres), including conversion of casual labour hire workers to permanent roles.

• Combating the same issue at Amazon’s Dandenong ‘fulfilment centre’ (which had 100% labour hire staff), unions didn’t have a strong enough basis for industrial action –  instead, they used the media to expose the terrible working conditions including oppressive monitoring and performance targets. This negative publicity led to the company committing to create 500 permanent positions early last year (I’m not sure if they’ve actually done so yet).

Union efforts to represent workers in the gig economy have involved a different blend of tactics, with industrial action not really an option (because the platforms’ starting assumption that workers are not employees locks them out of collective bargaining under the Fair Work Act). Instead, unions have:

• Brought legal challenges to challenge the gig economy’s contractor model – e.g. the successful unfair dismissal claim by Foodora rider, Josh Klooger, who’d been cut off the app when he started organising co-workers. The TWU, which backed his claim, is also supporting a sham contracting case in the Federal Court on behalf of a Deliveroo rider.

• Campaigned for policy and law reform – again, the TWU has worked closely with the Young Workers Centre at Victorian Trades Hall on their ‘Rights for Riders’ campaign. Their survey late last year, found that riders are missing out (on average) on $320 per week in unpaid wages and superannuation; and 1 out of every 4 riders has had a road accident, with no insurance coverage. The On-Demand Food Delivery Rider’s Charter of Rights they proposed included demands for collective voice and recognition of the Delivery Riders Alliance group of unions. These campaigns will not win reforms from the federal Coalition Government, but the Victorian Government’s recent on-demand work inquiry will lead to changes to improve the position of gig workers .

• Some unions have even tried to engage in a form of collective bargaining with platforms – e.g. Unions NSW’s agreement a few years ago with Airtasker, including recommended pay rates and safety measures. Although not a legally enforceable outcome, it provided a union foothold in the hostile terrain of the platform economy. So too did the TWU’s recent agreement with US food delivery app, Door Dash. This was mostly about enhancing COVID safety protections for food delivery workers, through contactless delivery, PPE and 2 weeks’ paid pandemic leave. But it also included a commitment from the platform to continue engaging with the union (a rare concession from gig operators globally).

What does all of this tell us?

We need to think about unions obtaining outcomes for workers through a range of strategies. In his article in the Industrial Law Journal in 2005, UK labour lawyer Professor Keith Ewing talked about this in terms of the various ‘functions of trade unions’ :

• There’s the central role of unions as the representative of employees in collective bargaining – a countervailing force to the power of the employer, and the main avenue for workers to win improvements in wages and conditions.
• Then there’s the workplace representation function of unions – both collective, and individual (acting on behalf of employees in grievances or disciplinary matters).
• A service function: the provision to members of professional services (e.g. legal advice and representation) and benefits like health insurance, unemployment assistance.
• And finally, the regulatory function of unions: this includes engaging with government to obtain laws that enable unions to fulfil their other purposes (and we have seen Victorian unions doing this very successfully, winning new state laws on labour hire licensing, wage theft and industrial manslaughter in the last few years). 
• Keith described this regulatory function as ‘the most visible manifestation of the trade union role in promoting fairness and social justice not only at work but within the economy as a whole.’

In the post-COVID world, the focus of unions can’t just be about counting how many members you might be able to sign up.

It also has to be about the critical mass of people you can engage in a campaign … whether that’s about the need for stronger legal rights for workers or a wage subsidy scheme like JobKeeper, the safety of the work site, the loss of jobs from restructuring, protecting workers from pay cuts, or winning a pay increase (the UWU recently proved this is possible in a pandemic, after a 2-week lockout of Woolworths DC workers in Wyong).

From those successes, unions can build a sustained, ongoing collective force for change.

Postscript:

What needs fixing in our laws for collective bargaining and industrial action?

• The concept of ‘enterprise’ bargaining, that closes off workers being able to negotiate – and strike against – the business that really holds the power, e.g. the supermarkets at the apex of the food supply chain; the building owner that sub-contracts cleaning and security businesses; the franchisor in a chain of fast-food stores; or the host business that brings in workers from several labour hire agencies.
• The ability of employers to bypass even that limited scheme of collective bargaining – through tactics like getting a small cohort of chosen employees to vote up a dodgy agreement; or talking the union to death (‘surface bargaining’) without any intention of reaching a deal; or having an agreement terminated by the Fair Work Commission.
• The intricately complex balloting process for protected industrial action in support of bargaining claims – with the multiple opportunities it gives employers to delay or thwart strikes, work bans and other forms of collective action (e.g. arguing that the union has not ‘genuinely tried’ to reach agreement, or disputing the precise wording of the industrial action notice).
• The ease with which employers can have lawful protected action suspended or terminated on so-called ‘public interest’ grounds – such as the FWC’s decision in 2018 to suspend a threatened strike by Sydney Trains employees, because it would damage the welfare of the city’s commuters.
• Sally McManus was right to say this meant the right to strike in Australia was “very nearly dead”. Josh Bornstein wrote a paper later that year: “Requiem-for-the-right-to-strike“.
• And my colleague Professor Shae McCrystal, in her excellent 2019 article in the Journal of Industrial Relations, was spot on when she said:
  • The real question appears not to be ‘Why is it so hard for workers to take industrial action when they need to?’, but Why do they continue to try to act lawfully at all?’. The introduction of the protected industrial action regime in 1993 created a ‘zone’ of lawful industrial action, which had the converse effect of more clearly delineating when industrial action was unlawful and unacceptable. In the subsequent 25 years, most unions in Australia have tried to play by the book, seeking to operate within the sphere of legality. However, the rule book keeps changing, the scope of action narrowing, the resource and administrative burdens increasing, and the stakes, in terms of getting it wrong, rising.

Workplace laws that give workers a fair chance of negotiating improved outcomes would include:

• Collective bargaining across industries, sectors and supply chains.
• Rigorous good faith bargaining rules – including a duty to conclude an agreement.
• Employers can’t bypass genuine collective negotiation by technical compliance with agreement-making rules (putting proposed agreement to a vote etc).
• Arbitration of intractable bargaining disputes.
• Expansion of the right to strike, i.e.
  • in support of all claims (i.e. not limited by concept of ‘permitted matters’);
  • during the term of an existing agreement (e.g. to protest restructuring/redundancies);
  • the right to take sympathy action in support of workers outside the direct employer’s business;
  • and to take action in support of political objectives (e.g. Change the Rules protests).