How "Fair" is the Fair Work Commission?

9 Aug

Australia has a proud history of class struggle. The achievements of the trade union movement in securing pay and conditions of work compare favourably with any across the globe. Of course, as Lenin pointed out in the early years of imperialism as a global system, workers in countries like Australia enjoy a privileged position relative to those of workers in what is now called the “global south”, but that is not the whole story. Workers in Australia wrested from the capitalist ruling class living standards and a legacy that have been the subject of vigorous “grab back”, especially in recent decades.

The trade union movement and the industrial relations system that was created to harness workers’ spirit of resistance, were both born in a period of intense class struggle in the midst and the aftermath of the great strike struggles of the 1890s. To the ruling class, something had to be done to curb the immense creative energies of workers who pushed the country to the brink of civil war during the Shearers’ Strike in that decade.

Striking shearers and their families pictured at Hughenden Strike Camp, Queensland (1891).

The “solution” devised by the ruling class in Australia was unique and particularly devious. A parallel system of federal and state-based courts (known as the Conciliation and Arbitration Commission), national wage fixation and comprehensive “awards” (documents establishing minimum pay and conditions in all sectors of industry) presented itself as an “independent umpire” in workplace relations.

Workers and trade union officials regularly bucked the directions of these courts to return to work or discount or reject workers’ demands but, overall, a consensus developed that the arbitration system worked in the interests of workers and the capitalist economy. Communists always rejected this assessment, and Communist leaderships wrote the greatest chapters in the history of the Australian labour movement when they headed efforts to challenge this mentality and the limitations it imposed on the struggle for socialism – the system based in workers’ genuine class interest.

The system of arbitration established in Australia was useful to the capitalist class in restricting workers’ power at a particular historical juncture, but is less necessary now. A century of brainwashing in the world outlook of the ruling class has facilitated a rapid erosion of the gains of the past. The Accord years of Labor governments of the 1980s and 1990s were the pinnacle of this degeneration.

False visions of a “win/win” for workers and bosses took firm root. Detailed awards and secure employment made way for “flexibility” and trade-offs of pay for compensating increases in the “social wage”; increases that failed to materialise in many cases. Enterprise agreements resembling US labour contracts replaced the concept of genuine industrial awards. Setbacks for the socialist system internationally enabled and fanned these initiatives on the part of the capitalist ruling class worldwide.

Now that the original principles of the system in Australia were undermined, a previously inconceivable debate and struggle about the need for any separate industrial relations system at all developed. Unions, who had a recognised and unique place in the system, were now portrayed as “rent takers” with no special role in representing workers. This debate was spearheaded by the more right-wing members of Coalition governments and think tanks, such as the HR Nicholls Society [1].

Legislation based in this drive switched into high gear in the Howard years with the Workplace Relations Act and the promotion of Australian Workplace Agreements that stripped workers of any legal defence of their position at work. Union activity, which used to be subject of lesser sanction in industrial courts, was now regularly punished with crushing fines and threats of jail time. A special police force (the Australian Building and Construction Commission) was established to try to extinguish the last flames of truly militant trade union activity.

The ALP, still financially dependent on the reformist trade union apparatus that gave rise to that party, responded with the Fair Work Act and the Fair Work Commission (FWC).

So What Are the Principles Behind the "Fair Work Commission"?

The appointment of figures to the Commission is unmistakably part of the class struggle. In the same way there is a tough contest to fill seats on the board of the Australian Broadcasting Corporation, potential appointees on the FWC are closely vetted. These are sensitive positions for upholding the economic and ideological agenda of the system.

It is interesting to note that, despite claims that latter-day capitalism has no antagonistic contradictions and that it is possible to achieve a "win/win" when considering the various demands of bosses and workers, its structure is based in the recognition of sharply conflicting interests.

Workers demand higher wages to keep up with rising household costs. They want shorter hours and better conditions to improve their generally skewed work/life balance and heavy burden of work.

Workers fought hard for the 8 hour day, but this achievement has been subjected to "grab-back" by the capitalist class.

The propertied class wants longer hours, lower wages, and fewer benefits for workers in order to boost the profit share of what the workers produce. It parallels the situation of landlords who want higher rents and to pay less to make their properties liveable. Higher property prices mean bigger profits and, on the housing market more generally, higher rents.

The FWC seeks to downplay the antagonism between the two classes, but there is no dressing up the fundamentally irreconcilable nature of these class interests. Anybody who has been involved in negotiating an Enterprise Bargaining Agreement can attest to this. The FWC puts on a show of considering the claims of both sides but will always act in the interests of the capitalist class and the system that serves them.

Fair Work Commissioners - Independent or Biased?

The public are led to believe that the Commissioners at the FWC are "independent" and, with the appointment of commissioners, there is equal representation for employers and employees. However, the reality is very different.

The idea that people, including commissioners, can unsubscribe to their past world outlook in light of a new position in the FWC is fanciful. If you look at the experience of some commissioners, whether it be previous human resources for major companies, former Liberal Party members and representatives or even previous union officials, you will find they have been moulded to see the side of employers throughout their whole career. Union officials, as much as they have represented workers, are always encouraged by the state and by the frameworks they operate in to negotiate with bosses and find a "fair" compromise. Employers, on the other hand, have structures that support business interest and those in charge of resolving disputes are often previous employers themselves.

An obvious example of commissioners who can be easily identified as being biased towards employers is Sophie Mirabella who was a controversial Liberal Party member of parliament. Labor’s industrial relations spokesperson at the time, Tony Burke, labelled her nomination in 2021 as a “blatantly political appointment of a Liberal mate”. Among her more notorious views were that there were no stolen generation policies enforced in Victoria and refusal to attend the Apology Ceremony in parliament. In 2005 she called for muslim women to remove their head dress when taking photo identification.

Prior to the 2013 federal election, retiring independent MP Tony Windsor nominated Mirabella for "the nasty prize" when asked who was the person he would miss least in politics on the ABC Insiders program. "She is the nastiest – I reckon if you put it to a vote to all politicians, she'd come up No.1".

How can the public expect Sophie Mirabella to be neutral in her position as a commissioner when she has a reputation for embracing values from the more right wing sections of the Liberal Party? After her time in parliament, she went on to represent Gina Rinehart as a general manager of government and media relations.

This is just one commissioner who would find it impossible to leave their biases at the doorstep when executing their role on the FWC. Employers will always have a leg up when their commissioner is Sophie Mirabella.

Sophie Mirabella is an obvious example of the far-right elements of the Liberal Party and, by extension, employer representation. Other commissioners, such as Paul Schneider, are not so public about their pro-employer biases; however their resumes will show their roles have always been for the benefit of business and the pursuit of profits. These roles inevitably put them at odds with the interests of workers and their unions.

"Mr Schneider is currently the Industrial Relations Manager of OSM Australia and has previously held senior human resource roles at Seven West Media, Svitzer Australia, Upstream Production Solutions and McDermott Australia", as noted on the Fair Work Commission's website [1].

Michaelia Cash, the former industrial relations minister, welcomed Paul Schneider on their appointment to the FWC with the following words: "On behalf of the Australian Government, I congratulate the new Commissioner on his appointment. I am confident that the appointee will execute his duties with impartiality and diligence." Michaelia Cash is not qualified to make such a judgement. In her role as industrial relations minister, she was neither impartial nor diligent.

Some examples of her union-busting include tipping off reporters to the raid in October 2017 at the Melbourne and Sydney offices of the AWU for information regarding allegedly undeclared donations given to GetUp and the ALP. The donations were later found to have been declared and even published in their magazine [2]. She refused to provide commentary when interrogated by ALP senator Doug Cameron during an enquiry. She was a vocal opponent to the CFMEU and MUA merger, which she claimed did not benefit union members, despite her being a consistent opponent of trade unionism [3].

Given their track record of opposition to unions and workers’ rights throughout their career, the idea that the FWC commissioners and the Industrial relations ministers are independent and impartial is unsubstantiated.

Another myth around the FWC is that it has equal representation of commissioners from employer and employee backgrounds. While in the past it was generally accepted that the FWC commissioners would be 50/50 employer and employee, it was not respected by the Liberal Party during their time in government.

The Liberal government selected 29 commissioners from employer backgrounds and only 16 from employee background. It also appointed some controversial commissioners before the 2022 Federal Elections [4].

It will be a test for the ALP to see if they will reverse the current situation to implement more employee representation or even legislate what was previously accepted in principle of 50/50 representation. A 50/50 ratio of worker to employer representation would be an improvement on the current situation, but it still is deeply undemocratic considering that 85% of Australia's population are workers. In light of this, workers should set aside the concept of "fair" representation and pursue a much more ambitious agenda.