On 7.30 last night, new Australian Council of Trade Unions secretary Sally McManus caused a predictable stir when she refused to distance herself from the Construction Forestry Mining and Energy Union over the numerous legal proceedings against it, saying: “I believe in the rule of law, when the law is fair and the law is right, but when it’s unjust, I don’t think there’s a problem with breaking it.”

It has been taken as a free kick for many on the right, with Cory Bernardi calling the remarks “just an extension of the lawlessness of the CFMEU and others who think that somehow mainstream society and the rules we govern ourselves by shouldn’t apply to them” on Sky, LNP frontbencher James McGrath calling the statement “a disgrace” and Michaelia Cash calling on Bill Shorten to “condemn and repudiate the remarks”. Shorten duly distanced himself from McManus, saying people should seek to change unjust laws, rather than break them.

The remarks came in the context of work safety, with McManus saying it was totally wrong that unions could be fined more for “illegal” strikes than employers who oversaw workplaces where employees had been killed. Crikey has previously reported on the fact it is illegal to strike (including over workplace safety, harassment or bullying) if it is outside the bargaining period for a new collective agreement.

Meanwhile, almost unnoticed by the news media, this week the Senate inquiry into corporate avoidance of the Fair Work Act continues. 

Workers from Parmalat’s Echuca plant appeared before the committee on March 14. Parmalat workers allege their employer threatened to terminate their agreement (thus lowering the basis of negotiations) as a bargaining chip. In response to the threat of a legal four-hour strike, the workers have been locked out of their workplace since mid-January. 

Another example of employers skirting the Fair Work Act can be found in Griffin Mining Company. On February 6, Terry Gray, chief operating officer of Griffin, fronted the committee regarding the company’s conduct in regards to its agreement with workers in Collie, Western Australia. After protracted negotiations, the company unilaterally terminated the agreement. The annualised salary of maintenance workers dropped by $24,000 to $29,000 per year, while they were expected to work seven extra hours per week. The previous day, Neil Weir, a Griffin Coal employee of 30 years, told the committee he had resigned (at the age of 60) in 2016 because the termination of the agreement would drop the value of his accrued entitlements (for example, his long service leave and unused annual leave) by more than half. 

The Ballarat Regional Trade and Labour Council submission called attention to the lingering issue of Australian workplace agreements. These individual agreements were a key feature of the WorkChoices legislation. AWAs could strike out penalty rates and other award minimums and be offered to new employees on a “take it or leave it” basis. The Fair Work Act prohibits new AWAs being put in place, but it sets no end date for existing ones. If neither party seeks to terminate an AWA it will continue to operate, even with conditions that would be illegal to put in place now. Because, unlike collective agreements, AWAs are not registered with any agency (indeed, that lack of oversight was one of the biggest controversies to beset WorkChoices), it’s difficult to know how many are still in operation. 

None of these instances breach the letter of the Fair Work Act, although the argument from employees and unions in each case has been that they breach the spirit or intention. Employees can only break the law, employers have the luxury of avoiding it.

*Correction: a previous version of this story stated Griffin employees were dropped to award conditions after their agreement were terminated. This is incorrect. The company elected to pay workers at 40%  above the award minimum for six months after the termination of the EBA.

The reporting date for the committee is set for August 7, 2017.

 

Peter Fray

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