Reading the horrific stories of abuse and exploitation of migrant workers at 7-Eleven and elsewhere, exposed in recent weeks by Fairfax, it is tempting to ask where were the unions in all this? It’s a legitimate question, as traditionally it has been the role of unions to unofficially police workplace abuses and help to enforce the law. But in this case, while unions have huffed and puffed from the sidelines, their significance in recent stories has mostly been in their absence.
It took an individual consumer advocate from the Gold Coast to investigate and reveal the 7-Eleven scandal, while the retail workers’ union, the Shop, Distributive and Allied Employees’ Association, has hardly been seen.
To be fair, the scattered nature of the 7-Eleven franchises and the closed migrant communities from which their labour force has been drawn would make it difficult for even the most proactive union to organise. Historically, workplace standards and conditions were enforced by active unions – unions improved workplaces and battled for the protections and rights that most Australians still associate with the ‘fair go’. Today, there is an expectation that an under-resourced Fair Work Ombudsman will fill this role.
A thirty-year campaign of de-unionisation
But to criticise unions for ‘not doing their job’ betrays a naive (or perhaps deliberate) misconception about how the power of organised labour in Australia has been systematically gutted over the past three decades.
Politicians, policy makers and the media might feign surprise, but in reality, this is the logical outcome of a determined campaign of workplace deregulation which has left vulnerable workers – particularly migrants and the young – open to exploitation, with few protections and limited recourse to the law or to unions.
Free market thinking imported from the US in the late 1970s and early 1980s provided the ideological underpinning for a crusade to de-unionise Australian workplaces and weaken the union movement.
It took until 1996, with the election of the Howard government, for this to come to fruition, beginning with the Workplace Relations Act that year and culminating in the WorkChoices legislation a decade later.
WorkChoices went well beyond the pale for most Australians, and unions managed to claw back some balance with the introduction of the Fair Work Act (2009).
But the case remains that it has been this virulent thirty-year anti-union campaign by the business lobby, conservative think tanks, and the Liberal-National Party Coalition, more than anything else, that has led to the decline of union density – and consequently, union power – in Australia.
With diminished union presence in workplaces, employers have been free to use and abuse workers with very few consequences. The stories exposed by Fairfax are just the tip of the iceberg, and the frustration for the labour movement is that it has been powerless to stop it.
Consider the many hurdles that unions today face in enforcing workplace laws in cases like 7-Eleven. For instance, union officials have no automatic legal right to turn up and demand entry to a workplace. They must hold a right-of-entry card, provide twenty-four-hours notice to the employer, and even then, that may be challenged in the Fair Work Commission. Those 24 hours give an employer ample time to hide any incriminating evidence before the union visit.
Even when they do gain entry, union officials have no automatic right to inspect employment records, and bosses can insist that a meeting take place in a hostile or inappropriate environment, designed to discourage workers from talking to the union.
And what if a union does actually break through and meet with workers – how does it then enforce the law? First, it must convince those workers to join the union so it can represent them; for many who are employed within a culture of intimidation, this is just a bridge too far.
There is nothing to compel an employer to negotiate a collective agreement with a union on behalf of a group of employees. Employers, advised by aggressive workplace lawyers, use a plethora of tactics to stonewall and avoid collective bargaining. And without a collective agreement, with enforceable dispute resolution procedures, the ability of a union to really take on an employer is limited.
All these hurdles are multiplied by the fear and insecurity felt by migrant workers.
Labor’s Fair Work Act has provided little help as it retained many of the most onerous restrictions on union activity introduced by the Howard Government the decade before.
Strong unions = less inequality
Nevertheless, a strong union movement remains the best bulwark we have against the spread of inequality seen in places like the United States. Visitors from there regularly remark upon how the massive gap between rich and poor emerged after the weakening of their unions.
In Australia, the 7-Eleven exploitation and related stories provide an opportunity for unions to represent a new group of insecure workers – what the British academic Guy Standing calls ‘the precariat’. The greatest workplace trend since the 1980s has been this steady growth of insecure work: casualisation, short-term contracts, ‘independent’ contracting and labour hire. To date, the union movement has been slow to take up the challenge of insecure work, but for it to remain relevant it must respond to these changing workplace demographics.
Too many unions have been preoccupied with protecting their traditional, but shrinking base of permanent, well-paid and relatively skilled workers – what some have dubbed ‘islands of privilege’ – while scant regard is given to the plight of low-paid insecure, casuals and labour hire employees.
In 2011, recognising the need to organise and represent such workers, the ACTU launched a campaign for secure jobs that led to the national inquiry into insecure work chaired by former deputy prime minister Brian Howe.
The secure jobs campaign had a strong policy underpinning, and was intended to run for years outside the electoral cycle, to achieve real changes to workplace law and better protect insecure workers, and extend to them many of the entitlements enjoyed by permanent employees.
Released in May 2012, Howe’s report – Lives on Hold – contained dozens of practical recommendations and reforms to deal with insecure work. With a couple of exceptions, those recommendations have sat on the shelf since.
Some unions – notably the National Union of Workers – have since been running their own campaigns to win new rights for casuals and end the exploitation, but in isolation it is a hard slog.
But it is not too late for the ACTU and its affiliates to revive a broad and strategic campaign focused on insecure work and the associated exploitation of workers on the margins. Howe’s report provides a ready-made blueprint for some of the types of changes needed.
The union movement has been collectively damaged in recent years from the HSU corruption scandals, the trade union royal commission witch-hunt, and their role in the Labor leadership turmoil. The best way for unions to rebuild their reputation is by seizing on genuine issues that affect workers today and campaigning for real change. And there is no group of workers more urgently in need of unions’ attention than the precariat.