Labor’s Fair Work Act has lifted the sense of intimidation felt about union membership among many workers.
Australian Bureau of Statistics figures from earlier this year showed a 3 per cent rise in union membership, to 1.75 million, despite the rise in unemployment.
But many workers are only just beginning to realise just how much of WorkChoices is built into Labor’s new law.
Take the legal requirement for new collective agreements to include a “flexibility” clause, conceded to business by Labor as compensation for the abolition of Australian Workplace Agreements.
Employers and unions can negotiate their own flexibility clause, which effective unions will minimise and turn into a dead letter.
But Labor requires the Fair Work commission to insert a model flexibility clause into any agreement coming before it for ratification that does not already include one. The model clause, which aggressive managers will try to force on poorly organised workforces, effectively allows employers to offer selected workers the equivalent of an AWA.
So even though those workers will nominally be part of a collective agreement, their hours, overtime rates and penalty rates could be substantially different to co-workers’ (subject to the figleaf of an “overall no disadvantage clause”).
This kind of “flexibility” is a licence for employers to divide and rule and minimise union strength.

Workers fight back
The result has already been at least two significant disputes. One involved about 150 workers at Campbell’s Soups in Shepparton, Victoria, who were locked out after going on strike over management’s version of a “flexibility clause”.
Australian Manufacturing Workers Union Victorian Secretary, Steve Dargavel, said: “We don’t want a clause that allows the employer to put pressure on a worker to accept individual arrangements that undermine the conditions that have been collectively bargained for and agreed.
“The clause the company wants would allow them to unilaterally approach individual workers and demand changes to key terms of employment. We can’t allow the conditions in the collective agreement to be undermined.”
Organiser Damian King said the issue was very straightforward. “We either have a collective agreement or we don’t and if you allow these flexibility clauses it means that the boss can make any worker go on an individual contract that undermines the agreement. What’s the point of having the agreement, if the boss can override it?”
On this occasion, the AMWU forced Campbell’s to accept its wording, meaning flexibility will be limited by the requirement to negotiate with groups of workers and gain majority support.
Meanwhile, workers at Visy in Coburg, in Melbourne’s northern suburbs, are still on the picket line over a flexibility clause.
AMWU organiser Tony Mavromatis said: “The workers feel strongly on this issue as well as some other key concerns they have around staffing levels and conditions.”
John, an AMWU delegate at Visy, said the workforce was outraged at the company’s behaviour. “They sent us a draft agreement which looked all right on the surface but, in reality, they took away our ability to collectively bargain.”
It’s not only blue-collar workers who are feeling the effect of Labor’s flexibility policy.
At Sydney University, management tried to push through a flexibility clause in negotiation with the National Tertiary Education Union that would have made almost every key clause in the agreement open to variation.
Labor may have abolished WorkChoices, but it has retained much of its substance, including the anti-construction union ABCC, secret ballots and tough penalties for unprotected industrial action.
The requirement for a flexibility clause is another neoliberal provision that has, until now, flown under the radar.
More workers will need to follow the lead of workers at Visy and Campbell’s and take industrial action to ensure collective agreements are not reduced to swiss cheese.
By David Glanz

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