Conflict or Cooperation? Australian Union Responses to COVID-19
8th October, 2020
Anthony Forsyth, RMIT University and Labour Law Down Under Blog. A longer version of this post was just published in Sachin Padya and Jeffrey Hirsch (eds), Work Law Under COVID-19, Chapter 13, available in open access at: https://worklawcovid19book.netlify.app/union-aus.html – the full book (a US-based initiative) is available at: https://worklawcovid19book.netlify.app/
The Australian union movement has experienced long-term membership decline, as have unions in many comparable countries over the last 30 years. Union density in Australia was only 14.7% of the workforce in 2018 (ABS 2018).
Yet unions have retained significant influence in the political sphere, through their close relationship with the Australian Labor Party, and a vocal role in public policy debate – especially on issues of inequality and insecure work (ACTU 2018).
In the lead-up to the May 2019 federal election, the Australian Council of Trade Unions argued for legislative reforms including a shift to sectoral collective bargaining. The ACTU’s energetic leader, Sally McManus, ensured that the ‘Change the Rules’ campaign attracted significant media attention and support from rank-and-file unionists.
However, the campaign did not sufficiently connect with the broader voting population (Cahill 2019). The conservative Coalition government was unexpectedly re-elected, leaving Australian unions facing a continuation of the hostile regulatory state which has taken various forms since 2013.
Then, in March 2020, along came the COVID-19 pandemic. Very quickly, the federal government appreciated that it needed to engage with trade union leaders to ensure large parts of industry could be shut down, millions of workers could transition to work-from-home, and essential sectors could keep operating safely.
The government moved from an overtly combative stance towards union leaders, to engagement and cooperation. Regular dialogue was established between the ACTU and federal Industrial Relations Minister, Christian Porter (Grattan 2020). Former union leaders were among those appointed to the National COVID-19 Coordination Commission established to tackle the crisis (https://www.pmc.gov.au/ncc).
Current union leaders have mostly reciprocated, even though – as the pandemic wears on – the air of consensus has been tested by business and Coalition calls for weakening of employment protections (Forsyth 2020).
Of course, there have been nuances within the overall union position of cooperation with business and federal and state governments, and instances where traditional class conflict has been necessary to protect workers’ interests (Moase 2020).
This chapter examines the responses to the pandemic of two labour organisations: the United Workers Union (UWU), and the National Tertiary Education Union (NTEU). First, I provide a brief explanation of the Australian system of labour regulation.
The Australian labour regulation landscape
By American standards, Australian labour law is relatively supportive of trade unions and collective bargaining – although certain limitations in this framework have been exploited by employers in the period since the Fair Work Act 2009 came into effect (AJLL 2020).
Regulation of employment rights and obligations is mostly a matter of federal law, with state laws generally restricted to regulating state public sector employment.
The Fair Work Act is the principal federal statute. It provides several platforms for union-based collective bargaining, including an equivalent to the US union recognition process (with the improvement that ballots need not always be held to establish majority employee support for bargaining); good faith bargaining obligations; assistance in negotiating collective agreements from a specialist tribunal; and union rights of entry onto business premises for organising activity.
The legislation also protects individual employment rights, including avenues of redress for unfair dismissal, discriminatory treatment and workplace bullying.
An important distinguishing feature of the Australian system is the comprehensive safety net provided by modern awards: legal instruments which set minimum wages and conditions (including leave entitlements, overtime and weekend pay rates, and regulation of working hours) for 122 different industries or occupations (https://www.fwc.gov.au/awards-and-agreements/awards/modern-awards/modern-awards-list).
Certain weaknesses in Australian law have become increasingly apparent, and were highlighted in the Change the Rules campaign. For example, employers can bypass collective bargaining with unions through technical compliance with mechanical agreement-making requirements and by restricting voting on proposed agreements to small cohorts of carefully-chosen workers (Chaudhuri and Sarina 2018).
United Workers Union: accommodating business to a limited extent, but drawing a ‘line in the sand’ on worker safety
The UWU is the product of a merger in late 2019 between the National Union of Workers and United Voice, with over 150,000 members in more than 45 industries. The UWU’s membership spans diverse sectors including warehousing, logistics and the food supply chain; manufacturing; cleaning; security; aged care and disability care; early childhood education; and hospitality (https://www.unitedworkers.org.au/).
In recent years, the two unions which merged to form the UWU have been lead innovators in seeking to address falling union membership. These initiatives have included a whole-of-supply-chain approach to organising workers through the ‘Fair Food Campaign’ (Underhill et al 2020); and the formation of a completely digital union (Hospo Voice) to engage with the young, casualised workforce in cafes, bars and restaurants (https://www.hospovoice.org.au/).
In the early stages of the pandemic, the UWU embraced the spirit of cooperation in the national interest. It made joint applications with employer associations to vary the hospitality and restaurant awards, to provide businesses with flexibility in response to government lockdown measures (for example, to more easily direct employees to change duties or reduce working hours) (https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1574.htm; https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1741.htm). The UWU also reached agreement with logistics firm DHL to facilitate redeployment of workers in areas of the supply chain impacted by closures, such as aviation, to other sites (https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc1581.htm).
At the same time, the UWU was at the forefront of union movement pressure for two key measures to assist workers. First, pandemic leave: the UWU obtained two weeks’ paid leave for employees stood-down from their jobs by Star and Crown Casinos in late March (Hatch 2020) and has sought paid pandemic leave for workers who are required to self-isolate across many other areas of its membership (UWU 23 March 2020). Secondly, income support: the UWU pushed hard for the (reluctant) Coalition government to introduce the JobKeeper wage subsidy scheme (https://treasury.gov.au/coronavirus/jobkeeper). The union has continued to highlight JobKeeper’s inadequacies (including the lack of support for thousands of casual workers in hospitality and around one million migrant workers), and put forward proposals for a more comprehensive jobs and income guarantee (Bolton 2020).
The UWU also took action, early on, to defend the rights of warehouse workers facing exposure to the virus and greatly increased working hours. In March, the union led a 6-hour strike by members at a cold storage facility run by Coles Supermarkets. The workers were concerned about inadequate safety measures and 10-14 hour working days (Lopez 2020).
Increasingly, the UWU has adopted this more confrontational position, particularly in the state of Victoria. After the initial national success in ‘flattening the curve’ by May, a resurgence of COVID-19 cases in Melbourne has seen the reinstatement of strict lockdown measures since late June (Handley 2020).
The rising case numbers in Melbourne have been linked to transmission in many workplaces covered by the UWU, including aged care homes, distribution centres and commercial laundries. Victorian Premier Daniel Andrews has attributed a large cause of the outbreak to insecure work, and the problem that some low-paid workers continue working while awaiting test results or even having tested positive for coronavirus (Butler and Taylor 2020; Schneiders and Millar 2020).
In this environment, flare-ups over safety issues have become much more common. The UWU has supported workers to resist management directives to continue working, despite heightened COVID-19 risks, in several cases.
At a Spotless industrial laundry facility on the outskirts of Melbourne, management sought orders from the Fair Work Commission requiring a return to work after workers walked off due to positive tests among the workforce. The dispute centred on the company’s decision to shut down and clean only part of the facility, whereas the union argued the whole workplace should be closed and workers stood down with full pay to obtain COVID-19 tests. The UWU’s intervention ensured that the site was temporarily closed following a Victorian health department inspection, and workers received paid leave during this period (UWU 5 August 2020; Ananth 2020a).
Outbreaks of infection have also occurred at the same Coles cold storage warehouse mentioned earlier; at a Woolworths warehouse supplying alcohol to major retailers; and at a Kmart distribution centre operated by Toll logistics (Ananth 2020b; Schneiders 2020; Bonyhady 2020). In each instance, UWU members stopped work to demand closure of the site and comprehensive testing of all workers, a ‘collective stand’ to ensure that they were not treated as mere ‘vectors of transmission’ (Moase 2020).
The union held steadfast in that approach as the more serious escalation of COVID-19 cases in Victoria inevitably impacted aged care workers (Preiss et al 2020). In aged care, the UWU shares coverage of workers with the Health Services Union and the Australian Nursing Federation. Among other efforts to represent aged care staff, the UWU used the results of a national survey to demand increased training, protective equipment and resources to alleviate the crushing work pressures facing these essential workers (UWU 27 July 2020).
National Tertiary Education Union: a rapid lurch to concession bargaining goes terribly awry
The NTEU is the union representing academic and general/professional staff employed in universities and technical and further education institutions, with around 30,000 members across Australia (https://www.nteu.org.au/).
Over the last 20 years, Australian universities have become increasingly reliant on international students, with income from this source making up 30-40% of the total revenue of some institutions (Horne 2020). However, the closure of Australia’s borders to overseas travellers in February-March – right at the start of the new academic year – resulted in a massive reduction in the numbers of international students commencing their courses. The estimated loss of revenue to the higher education sector for the period 2020-2023, arising from the pandemic, is A$16 billion (Ferguson and Love 2020).
Initially, universities responded by dismissing large numbers of casual (i.e. temporary) staff and not renewing fixed-term contracts. As the extent of the impact on their revenue base from the loss of future overseas student enrolments became clearer, university leaders began to raise the prospect of deeper staff cuts and the need to reduce pay and conditions if their institutions were to survive the crisis (Vassiley 2020).
The NTEU opposed the early layoffs of casual and fixed-term university staff, and advocated for greater support and resources to assist teaching staff required to transition to online delivery once campuses closed (see e.g. Convery 2020). The NTEU has also campaigned against the federal government’s structuring of the JobKeeper wage subsidy scheme to exclude public universities (Zhou 2020).
In mid-May, the NTEU announced that it had negotiated a ‘National Jobs Protection Framework’ (NJPF) with universities that would save up to 12,000 jobs under threat across the sector. This would be achieved through ‘proposed temporary and time-limited changes to the pay and conditions of university employees to be put in place through variations to university enterprise agreements …, and which will be voted upon by staff in order to be put into effect’ (NTEU 2020).
The NJPF proposed that temporary pay cuts of up to 15% could be put in place, subject to universities meeting several conditions. These included the prior implementation of management salary reductions, and a commitment that no staff would be involuntarily stood down and none would be made redundant unless their work had definitely ceased (NTEU 2020).
However, the NJPF quickly unravelled. Many NTEU members reacted angrily to the proposal. A splinter group called ‘NTEU Fightback’ was swiftly formed to counter the union leadership’s position. The Community and Public Sector Union, which covers some non-teaching staff in universities, also opposed the NJPF. Members at some of the NTEU’s largest branches, including at Sydney, Melbourne and RMIT universities, passed resolutions condemning the plan (Mizen 2020). These critics were concerned that the NTEU had too easily given up hard-won conditions, that the job protections in the NJPF were weak, and that the union needed to put more pressure on universities and the federal government to properly fund higher education (Vassiley 2020).
Simultaneously, most university vice-chancellors walked away from the NJPF, no doubt concerned about the membership backlash and (as a result) the prospect that staff would vote against pay reductions. In the end, only four of Australia’s 39 universities stuck with the NJPF, and by late May the NTEU had withdrawn the proposal altogether (Vassiley 2020). The union’s General Secretary, Matthew McGowan, has since stated that this occurred (in part) because universities were engaged in competitive behaviour and abandoned their own negotiating body, the Australian Higher Education Industrial Association (McGowan 2020).
The NTEU then shifted its focus to fighting job losses and protecting members’ pay and conditions, although from a weakened position as a result of the NJPF episode. In the months since, many universities have proceeded with large-scale layoffs (both voluntary and targeted redundancies) – for example, 450 jobs were cut at University of Melbourne, 473 at University of New South Wales and 277 at Monash University (Duffy 2020; Karp 2020). Monash was one of the few remaining adherents to the NJPF, and the university stated that this agreement with the NTEU had prevented a further 190 job losses (Karp 2020). At Deakin University, the NTEU’s intervention has slowed down implementation of 400 redundancies (https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc4013.htm).
Management proposals to reduce wages have been approved by staff at some institutions, such as University of Tasmania (Ross 2020), and rejected at others including Melbourne University and University of Wollongong (Bolton 2020). Other universities have sought to lower costs through measures short of pay cuts, such as arrangements for staff to purchase and take additional annual leave days at Western Sydney University (World Socialist Web Site 2020). Universities have generally argued that if staff do not agree to wage reductions or other cost-saving measures, redundancies will follow. However in some cases, such as at La Trobe University, layoffs have been implemented despite staff acceptance of salary reductions (Carey 2020; D’Cruz 2020).
This chapter has provided an outline of the contrasting responses of two Australian unions to the COVID-19 pandemic. The UWU has engaged in a level of collaboration with business, particularly in the early stages of the crisis, to enable the adjustment of operations following government lockdown measures (for example in hospitality venues). It has campaigned for much-needed policy interventions including income support and paid pandemic leave. As coronavirus infections re-emerged in the state of Victoria, the UWU has been uncompromising in relation to the safety of its members. It has organised industrial action to defy employers who have sought to compel continued work despite infection risks to workers.
The NTEU has been confronted with different issues, mainly centred on the job security of its members arising from university cost-cutting measures to address the shortfall of international students and revenue. The union came up with the NJPF as a strategy to safeguard as many jobs as possible in this uncertain climate. However, this turned out to be a flawed strategy for several reasons: the NTEU leadership mis-read its membership, under-estimated concerns that it was prioritising tenured academics over those in more precarious roles and support staff, and placed too much faith in the higher education employer body to hold vice-chancellors to a unified position.
Generally, the pandemic has forced Australian unions into a defensive posture, given the environment of an economic recession and rising unemployment. A certain extent of cooperation with business and government has been necessary to meet these challenges. For unions, it is a matter of getting the balance right: supporting necessary measures to re-orient the economy and society in the national interest, while preserving the capacity to act as the bulwark against arbitrary and unfair employer decisions through collective action. Six months into this crisis, it seems that the UWU has been better able than the NTEU to navigate these tensions between conflict and cooperation.
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 The author is a member of the NTEU, and a community member of the UWU.
 Under the Fair Work Act, variations to enterprise agreements (which set the pay and conditions for staff at most universities) must be approved by a majority of those voting when the proposed changes are submitted to a ballot of all employees.
 Of course, the role of unions is so much greater than that. Their function of improving workers’ wages and conditions through collective bargaining has largely been frozen since the onset of the pandemic. The efforts of the UWU and NTEU to progress bargaining, despite these constraints, are beyond the scope of this chapter. It was also not possible within the word limit to discuss the federal government’s industrial relations reform process, which raises further questions about the extent of union cooperation versus conflict (https://www.ag.gov.au/industrial-relations/industrial-relations-reform).