On 16 May 2018 Australia took a quiet step away from the recriminalisation of organised industrial activity. Criminal charges against Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) officials John Setka and Shaun Reardon, which had been laid by the Victorian Director of Public Prosecutions following the recommendations of the Trade Union Royal Commission (TURC), were dropped. The men had been accused of making an ‘unwarranted demand with menaces’ in a coffee-shop meeting with two executives from concrete company Boral in 2013. The charges related to alleged threats they made to blockade Boral’s plants if it continued to supply cement to Grocon, a building company with which the union has been in long-running dispute over occupational health and safety issues. The criminal case against the CFMEU officials, had it not been abandoned for lack of evidence, would have created a major precedent in determining the basis and limits for the use of criminal law in industrial disputes in Australia, with implications that would have reached far beyond the construction sector. Aged-care workers, cleaners, teachers and nurses, and their unions, which already operate under a heavily prescriptive regulatory regime for industrial activity, would have been forced to grapple with the chilling possibility that their efforts to organise workers and exert industrial pressure on employers might, potentially, constitute crimes.
It goes without saying that there is a deep and inalienable public interest in ensuring that trade unions are accountable. The Kathy Jackson/Health Services Union affair, like every instance of corruption, represents an intolerable abuse of power and a betrayal of the trust and money of workers. The need for a legal regime that deals with such malfeasance in a timely and decisive manner, and balances this imperative with the democratic right of members to decide upon their own form of governance, is indisputable. Any regulatory adjustments should be approached, though, with cognisance of the fact that Australian unions are already subject to a level of regulation of their internal affairs that exceeds that of their counterparts in other liberal democracies. Union regulation also overwhelmingly transcends the accountability frameworks imposed on Australian corporations. A single-digit typographical error on a document prepared in the context of an internal union election can entail months of work to correct, as it must be worked through the bureaucratic processes of no fewer than two and often three regulatory agencies: the Australian Electoral Commission, the Registered Organisations Commission and, in most cases, the Fair Work Commission. A corporation, by contrast, can be registered without any of its directors having provided legal evidence of their real names.
Secondary boycotts, the phenomena at the centre of the present CFMEU controversy, have been prohibited under civil law in Australia since the mid-1970s. Our laws on this matter put Australia at odds with both international labour-law standards (which permit sympathy strikes as long as the original strike is lawful) and the industrial-law frameworks of most OECD countries. The CFMEU’s boycotts have already been the subject of extensive civil litigation, having been found to breach the provisions of the Competition and Consumer Act 2010, which has resulted in the union paying over $10 million in penalties.
There are enormous challenges surrounding any attempt to place these issues in their proper historical and legal context with a view to cultivating a reasoned public-policy debate. The police raids on the Australian Workers Union (AWU) offices, the TURC, and the Coalition’s proposals to increase the minimum penalty for secondary boycotts to $10 million are all indicia of an approach to politics that insists upon every issue of governance—particularly as it relates to trade unions—being refracted through the lens of a culture war. The dominance of the ‘culture war’ paradigm means that all the institutions, traditions and tools of government—from the police to royal commissions to funding decisions and legislative instruments for accountability—are understood to be not so much tools for the exercise of good governance as latent weapons, waiting to be seized and wielded in pursuit of the elimination of political enemies. For the Coalition, the ‘political enemy’ category naturally begins with unions, but it also extends to numerous entities who present real or latent threats to the neoliberal order, including environmental organisations, the Human Rights Commission and charities who engage in political advocacy. In this culture war, appearances, media narratives and ambient associations matter far more than logic, ideas, principles or evidence. While the dropping of criminal charges against Setka and Reardon was, at a rational level, embarrassing for the Coalition, as a media event it was a political win, simply because it caused the words ‘union’, ‘blackmail’ and ‘criminal’ to be placed adjacent to each other in newspaper headlines, together with pictures of men wearing black T-shirts.
The nearly $50-million TURC was hardly the first royal commission to be used to prosecute a political agenda. The fact that royal commissions are creatures of executive government rather than judicial bodies, and have wide statutory powers to collect and compel evidence, means that they will always carry some risk of being, or being seen to be, political tools. Accusations of bias, political manipulation and wasted public funds were widely made in response to the Howard government’s 2001 Royal Commission into the Building and Construction Industry, as well as the WA Court Coalition government’s Royal Commission into Use of Executive Power (Marks Royal Commission) that investigated former WA premier Carmen Lawrence. The commissions that have worked most powerfully in the public interest, such as the 1991 Royal Commission into Aboriginal Deaths in Custody, Queensland’s Fitzgerald inquiry and the Costigan inquiry into corruption on the Melbourne waterfront were all inquiries that proceeded according to a very different logic to the one that prevails today; they took a wide, systemic perspective that was detached from partisan parliamentary politics. Coalition governments have instigated such royal commissions in the past. As well as the Fitzgerald and Costigan inquiries, the 1970 Gorton Coalition government called the Royal Commission into Exploratory and Production Drilling for Petroleum in the Area of the Great Barrier Reef jointly with the Queensland government; that commission dealt with a topic of immense public importance, then and now, but it would be very difficult to imagine a Coalition government calling such an inquiry today.
The pantomime version of industrial relations doesn’t just degrade the quality of existing democratic debates about topical issues; it also forecloses on the possibility of serious and inclusive democratic deliberation over aspects of labour governance that are new. Australia faces a vast set of challenges in adapting its current set of workplace laws and occupational structures to meet the entwined challenges of automation, climate change, rising inequality and an ageing population in the twenty-first century. The steady drumbeat of anti-union and anti-institutional rhetoric that emanates from the Coalition at every turn not only distracts us from working on these issues collectively but also serves to corrode any expectation that government can or should have a role in facilitating, contributing to or leading such conversations.
The ACTU’s Change the Rules campaign has drawn attention to the many deficiencies in the present industrial-relations framework that enable large swaths of the workforce to languish in insecure and precarious work arrangements and prevent them from commanding adequate levels of industrial power to meaningfully bargain. In some sectors, union density and expectations of work are so low, and the levers of justice so unreachable, that wage theft has become a business model. Many of the occupations served particularly poorly by current arrangements are, coincidentally, precisely the jobs likely to matter most in the twenty-first-century economy. Workers in jobs such as aged care, early-childhood education and community services, for example, all rely heavily on human empathy and judgment, interpersonal skills that are relatively immune from automation and ‘digital disruption’. If we want to create policies to support the ‘future of work’, it is to these sectors that we should be looking first to make sure that our industrial-relations framework is up to ensuring that these jobs are sufficiently waged and secure to form the basis for a decent life.
Urgent, too, are questions concerning the further introduction of digital technology into workplaces, particularly as this technology relates to surveillance and performance management. What would it take to create a system that gives all workers a genuine voice and say about their conditions of work, in circumstances where their every task, movement and keystroke is capable of being tracked, stored, analysed and rated, at virtually no cost? What new institutions for fairness are required for the algorithmic age in order to enable a genuinely shared basis of power and control? Unions are crucial in answering these questions. It is utopian to imagine that the alienating potential of technology can adequately be handled in a top-down way, through the beneficence of employers and/or ‘smart’ digital design. Ideas about what constitutes a meaningful worker voice in a digitally embedded workplace must, of necessity, involve workers themselves and, by extension, their unions. One app pitched against another is not a democratic conversation.
A mature debate on these questions demands a framework for politics that is quite different to the one we have now. Getting to that stage will require Coalition politicians to rediscover a sense of governance for the public good, and to turn away from the culture-war logic that insists that every industrial-relations issue is little more than an opportunity to inflict damage on political opponents. The direct political ancestor of the current Australian Liberal Party, the Commonwealth Liberal Party, took a wholly different view, recognising unions as necessary and welcome actors in a system that was deliberately designed in a way that enabled countervailing power to be exercised in the interests of workers. It seems that we are a long way from any similar recognition today, but without it, it will be nearly impossible to re-forge our system in a manner that will enable some semblance of the egalitarian tradition to continue into the twenty-first century. The dismissal of criminal charges against Setka and Reardon is unquestionably a matter for relief, but it provides no resolution of these bigger, more systemic issues.