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Sham democracy and EBA

Written by: Ashley C. on 15 April 2023


                                                                       Catherine Courtald Public Domain

In his 1974 booklet Revolution and the Australian State, comrade E. F. Hill provides the following assessment of the relationship between the Australian people, the legal courts and the police: "Theoretically, people have their remedies in the courts before which, according to the theory, the police and the citizen are equal. Test the theory in practice. It is a bitter joke which emphasises the real dictatorship expressed through the police and the courts." (17)

While this quote is lifted from Hill’s discussion regarding the real relationship between police and citizens, the same view may be applied to the relationship between employees and their employers. Working people in Australia may be convinced that they are on an equal legal footing with their employer. After all, we have plenty of industrial relations legislation in Australia and the Fair Work Commission, right? What’s to worry? Well, if that’s the theory, then perhaps workers should “test the theory in practice”.

I’m a union delegate who works within a highly casualised industry. After many years of attempting to address issues at our workplace, customer-service staff have recognised the need for collective action and we have now reached almost 100% union membership with our relevant union. Prior to this, our employer has never had any involvement with unions during its forty years of operation and has always operated according to a top-down model of corporate management. Accordingly, operational decisions are exclusively made by the corporation’s board members and its executive management team. There has never been an enterprise agreement in effect at the workplace.

In order to improve our wages and conditions, we are currently in the process of bargaining and negotiating for an enterprise agreement that will apply to those who are currently the lowest paid and most precariously employed workers within the workplace. Management have been reluctant to meet with our assigned industrial officer from the union, and they didn’t even officially agree to honour our initial notification to begin bargaining process until we threatened to seek a majority support determination from the Fair Work Commission. Aside from being an incredibly frustrating and draining process, it has been interesting to witness the ignorance and incompetence of those who work within such highly responsible positions of executive management. They are in charge of managing millions of dollars in public money (the employer is a not-for-profit organisation with its operational expenses sourced from government grants) and yet they do not know what the substantial differences are between enterprise agreements and industry awards.

Our log of claims was developed through extensive consultation and surveying staff members, and we were proud to submit the document to management. Our claims sought the best possible outcomes for staff, whilst remaining practical and respectful of the everyday functioning of the workplace. We submitted our claims in February and are currently still awaiting a clear response from the employer, despite having met for two bargaining meetings since. This process is being drawn out due to both the incompetence of management and their lack of understanding of the perspective of staff members

Note the following disputed claim. Casual employees wished to seek improvements on their entitlement to overtime pay. Under our current industrial award, we are entitled to the following:

Casual employees may be employed for up to 10 ordinary hours each day, provided that all time worked in excess of ordinary working hours on any one day or in excess of 38 hours in any one week will be overtime.

Workers are not entitled to overtime pay until they have worked beyond 10 hours (we are also entitled to a 20 minute paid break for every 5 hours worked). The casual overtime rate is 150% and also excludes the 25% casual loading amount. Only after working beyond 13 hours will a casual be entitled to a 200% overtime rate.

In our log of claims, we are seeking overtime improvements where employees are to be paid at a rate of 200% for all hours worked beyond 8 hours. Any worker would agree that this is hardly an unreasonable entitlement — 8 hours is a long time, especially when you are only entitled to a single 20 minute break. Management disagree and would prefer the entitlements set out in the award.

Union members have also requested that overtime rates are to be paid for any additional hours worked outside of their rostered hours. Management disagree with this and they cite the National Employment Standards, where, according their interpretation, they are permitted to “choose to offer a casual employee additional work to that rostered and it is the employee’s choice to work or not.” As far as the employer understands, overtime entitlements may therefore be overlooked if the employee makes an individual choice to continue working. It’s bad enough that the employer not only thinks they can easily get away with this cynical and deceitful business conduct, but what’s worse is that they do get away with it.

I’ve only mentioned one disputed claim here. There are plenty of other examples that I could go on about — on every issue, the employer sees the industry awards and the NES safety-net as guidelines for their business model of keeping their employees on the bare minimum of wages and conditions. This is all within the context of our particular employer that prides itself on its “progressive” image and its self-congratulatory commitment to upholding “best practice” workplace policies. Even when workers organise themselves and jump through all the legal loops in order to secure a fairer share, it’s easy enough for management, the CEO and board members to keep dragging things out and to avoid negotiating with employees.

While bargaining is ongoing (and edging towards an application for protected industrial action), a benefit to all this is that workers are learning of the fundamental antagonism that exists between themselves and the employer. Some will never trust another employer again. This is a hard lesson that has been learnt through first hand experience. Across any industry, when it comes to unionised workers engaging in legal struggle through the enterprise bargaining process, the difference between formal and real democratic freedom is on full display. While Australian workers may have some rights and access to engage in legal processes, the apparent equality between employees and employers is an illusion. In the face of this, it is too easy — and tempting— for workers to give up trying to secure something more than the bare minimum and to embrace individualism in their working life. 

Working people do not need to be lectured about the inequalities of capitalist industrial relations.  It’s through their direct engagement in bourgeois democracy, or the real dictatorship of employers and monopoly capital, that they can learn the disappointing lessons of their illusory access to legal power. To end, I encourage the reader to reflect upon another quote from comrade Hill’s Revolution and the Australian State, and to consider how the worker’s experience of hopelessness within present legal struggle may actually provide lessons towards the development of revolutionary consciousness:

"in Australia we regard the struggle to defend democratic rights as an essential component in revolutionary struggle. Likewise, we regard the struggle against repressive legislation. The struggle to defend democratic rights is not a thing in itself, not something aimed at greater bourgeois democracy itself but is part of the struggle to end exploitation and to win state power. In the struggle, the workers and working people come to understand the severe limitation of democratic rights, come to understand the need to struggle for revolutionary power which will convert formal freedoms into real freedoms, enhance their revolutionary consciousness." (77)


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