The Tantex Holdings judgement, and why you should join a fighting union

Just as Joe Biden turned his back on the union movement for a $15 minimum wage in the US, the Australian Government’s industrial relations bill passed in both houses. Despite some concessions made to union, Greens, and Labor demands, the changes are still set to strip back workers’ conditions and incomes.

In some of the lowest paid industries hardest hit by coronavirus, essential workers in the retail, hospitality, and fast-food sectors have suffered major job losses and reduced wages across Australia. It comes as no surprise that these industries, which have incredibly low union membership and little organising power, are targets of anti-worker reforms.

The Morrison Government’s IR bill uses the tiresome but wholly expected language of flexibility and deregulation to sell the idea that the proposal will be a job creator. But the laws are fully intended to further entrench casualisation in already heavily casualised industries. These changes are part of a consistent and concerted effort to erode the pay and conditions of essential but precariously employed workers. Though pressure from unions, cross benchers, Greens and Labor has forced the Government to drop many of its proposed attacks on workers in this particular bill, it is only a matter of time before another attempt is made to further erode workers’ rights, incomes, and benefits.

It is in the face of these attacks that the role of unions is more critical than ever. Interestingly, the Federal Court of Australia recently attested this fact when it handed down its penalties on the case of Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd.

An earlier judgment found that Tantex Holdings, a McDonald’s franchisee which operates six McDonald’s restaurants, was guilty of several contraventions of the Fair Work Act (FWA). These included denying workers paid 10-minute breaks and preventing them from drinking water or using the toilet during their shifts. 

What is interesting about the eventual penalties is not that the Federal Court ruled in RAFFWU’s favour. McDonald’s had clearly been coercing children and young staff into working in conditions which were illegal. Neither is it that McDonald’s had been denying workers their entitlements – bosses are constantly ripping off their workers, and often break the law to do so with impunity. What is interesting is that in formulating its judgement, the Court emphasised the role unions play in protecting workers’ rights, and is worth being reproduced at length here:

Ms Staines and the Union have each well-served the public interest. That is not an abstract concept. […] Under our system of justice, part of Australia’s constitutional inheritance from the United Kingdom, the courts are adversarial, not inquisitorial. That means that the power to impose civil penalties [only occurs] when a proceeding is instituted. Public resources allocated to police the FWA are limited. The financial ability of an individual worker to police a perceived contravention of the FWA is also in most cases limited. Workers, collectively, via a trade union, are thereby better equipped to do this. The policing by trade unions of compliance with industrial laws is a longstanding, legitimate role of trade unions. This does not just serve the interests of the particular workers concerned, or the trade union. It serves the national interest. (My emphasis)

The question of ‘national interest’ aside, the point made here is that the union has served the public and, by extension, the interest of workers everywhere. It is a little astonishing to hear this from the state legal apparatus, which is typically hostile to workers’ interests. But it is worth staying with this point for a moment, because it tells us what unions are for: fighting for workers’ rights. 

When I was fifteen, I got a job at Hungry Jacks in Woodville, South Australia. It was, and I’m sure still is, a thankless, messy job with very little reward. The work was so demeaning and physically and mentally exhausting that I quit after a few weeks. It was one of the toughest jobs I’ve ever had, and I didn’t even have to work in a customer service role. My many years of experience working in retail has since exposed me to the rudeness of customers and the judgement they pass on workers they see as doing ‘easy’ jobs in ‘unskilled’ work. To anyone who works in fast food: you have my deepest respect and my enduring solidarity – especially those young workers earning as little as $8.71 an hour. 

When I went in for my induction at Hungry Jacks, I was told I should join their union, the Shop, Distributive and Allied Employees Association (SDA). I was young and didn’t think I had a choice, so I signed up. I had no idea what a union was for, aside from taking some of my weekly pay. As it happens, the SDA doesn’t even call itself a union. It’s more of a business association, and actively works to make sure workers get a raw deal. Being the ‘union’ of choice for owners of fast food outlets and large supermarket chains, it is one of the largest private sector unions in Australia. They use that power to promote their right-wing agenda in opposing same sex marriage and abortion.

Most young people, like myself and the others I worked with at Hungry Jacks, find their first job at large retail and fast-food corporations. The SDA’s relationship with these employers means that a lot of people’s first experience with unions is a lacklustre one. This is surely a contributing factor to union membership being at record lows in Australia, falling from 51 per cent of the workforce in 1976, to 40 per cent in 1992, down to 14 per cent last year. 

In spite of the decline in membership, workers still reap benefits hard-won by the labour movement in the form of industry awards, which set minimum benchmarks for wages and entitlements, and labour laws, which define conditions and workplace health and safety. It can be easy for workers to become complacent in this environment, and ignorant of the struggle that brought them their rights as workers. Complacency and ignorance are exactly what Tantex Holdings and other business owners prey upon in their workers. Indeed, it’s why they hire children.

In an environment where workers don’t understand the power of operating as a collective, bosses will attempt to strip them of their minimal entitlements. McDonald’s is a particularly salient example of this. They already take advantage of junior wages to pay their staff less for the same work, while gaining the added bonus of employing a group of people who have only recently entered the labour market. Having grown up under Howard’s Work Choices and successive business-friendly labour laws, young people have entered a labour market defined by individual rather than group bargaining, where the right to strike is severely restricted, and where patterned bargaining and industry-wide industrial action are outlawed.

Under these conditions, you can understand why children and young people would believe that they cannot use the bathroom on company time when their bosses tell them so.

In my role as a workplace activist for the Retail and Fast Food Workers Union (RAFFWU), I have found that inexperience with the working environment allows young people to be exploited in particularly extreme ways. Recently, at the book shop where I work in Carlton, a young worker approached me after they had been made aware of my role with the union. They told me that they had been underpaid for their shifts and had been rostered for shifts that were changed without notice. This was their first job, so they had no idea that this was illegal, nor how to remedy the situation.

It reminded me of how I felt at my first job. My mum had stressed the importance of working hard, listening to my boss, and being on time and well presented. What was not expressed was what my boss was obliged to do for me. What breaks I should have, when and how much I should be paid, what to do if I were underpaid, what I could do if something was unsafe.

I am glad to be in a position where I can help young workers push back against a system designed to exploit them. It is my job, as a unionist, to make sure that the bosses hold up their end of the bargain.

This is where the wording of the RAFFWU v Tantex judgement is important: ‘The policing by trade unions of compliance with industrial laws is a longstanding, legitimate role of trade unions.’ This is indeed one of the main roles of unions. Without a bulwark against exploitation, there is nothing stopping bosses from demanding more from workers while providing them with less in return. Protecting and defending minimum conditions that have been hard won through labour militancy is the most fundamental role of any contemporary fighting union. It is under these conditions that non-union workers can see unions not as a relic from the past, but as an active and wholly necessary part of labour relations. Indeed, there can be no labour ‘relations’ without organising. Workers can only build power that challenges the fundamentally coercive and dominating nature of capital through collective action.

While union membership is at its nadir, these are small but important victories that show the enormous possibilities of unionism. Young workers organising hints at the future of a resurgent labour movement. This is a development we desperately need, especially in the industries most affected by Morrison’s industrial relations law changes – industries such as fast food, retail, and hospitality, which are already rife with casualisation, wage theft, and unhealthy and unsafe conditions.

Only a unionised workforce can take back the wages, entitlements, and conditions workers in these industries have lost over successive neoliberal governments. It is only in union that workers can fight back and achieve something better. Join a fighting union.


Michael McLoughlin

Michael McLoughlin is a unionist based on unceded punnilerpanner country.

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  1. Great article Michael!

    One of the major challenges is overcoming ignorance, complacency and an assumption that conditions can’t/won’t be lost. How can this be better communicated across the board to counter the false optimism that “things always get better” .. but in a way that inspires understanding of the fundamental importance of collective action!

    1. I think the evidence is in people’s bank accounts. Wages haven’t been rising, new workers are getting a raw deal, while the gilded property owners continue to make massive gains in a housing market that a huge swath of society has no access too. Tie that to the fact that public goods (i.e. welfare and housing) were only created by a militant labour movement, and the writing is on the wall

  2. One of my first jobs was at Officeworks and I joined the SDA too because the membership form came with all of the other official employer work. Not a good sign, as it turned out! They seemed to have no interest in protecting or extending our working rights. It’s so great that there’s a real fighting union out there for people working in retail and fast food to join now. Love your work RAFFWU ✊

  3. Great article… And reminds us that ‘woke’ ‘progressives’ often neglect one important part of the Left: worker’s rights and collective action.

  4. As long as unions remain hierarchical they will never represent the rights of all workers.
    History is the proof.

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