BOOT on the other foot in industrial relations stand-off

In the union movement, a long-awaited spark of hope has been lit and the drums of war are beating

Secretary of the ACTU Sally McManus and President Michele O’Neil in Canberra. Picture: Sean Davey.

“The government wants to cut workers’ pay and conditions. The union movement won’t ever accept that. Let’s do this.”

That was ACTU president ­Michele O’Neil this week, tweeting after the federal government revealed its proposed industrial relations reforms.

In the union movement, a long-awaited spark of hope has been lit and the drums of war are beating. What O’Neil means by “Let’s do this” is a public campaign against the reforms and the Morrison government.

In response to concerns aired, the government said it was happy to talk, but this offer landed on deaf ears. Later, O’Neil said: “We are always prepared to talk, but of course if the government’s not prepared to do this, we’ll talk to working people, we’ll talk to our affiliates, about a campaign to stop the law.’’

O’Neil’s words bring to mind a friend who was always a Liberal supporter from a very young age. He volunteered at polling booths to elect John Howard, who he ­admired intensely. Yet in 2006, Work Choices led to his pay being cut. Still today, his sense of betrayal is real. My friend remains a committed Labor supporter, and not for turning. He has a deep distrust of the Coalition, which he sees as the party of the bosses. He is exactly the sort of person the union movement will be seeking to galvanise in a campaign against the proposed reforms in the lead-up to the next election.

Certainly, the unions and Labor would love an opportunity to repeat history and bring down their opposition over workplace policy. Prior to the release of this week’s reforms, there would have been some hoping and praying that an opening for advantage would present itself.

Has a line been crossed? Perhaps a toe has been gingerly extended. The suggestion was that only with employee agreement, only under careful scrutiny of the regulator, only in extreme circumstances, and only for the next two years could an agreement be made that might leave some employees worse off financially.

This small but contentious part of the proposed law goes into a touchy area, with a long and sorry history dating back 15 years. Back then, an error of judgment occurred in the government of the day, and governments in the future will be paying for this forever.

That error, known as Work Choices, led to negative consequences for some people. Specifically, legislation allowed all employers to cut people’s wages, and allowed some employers to sack workers with no recourse.

When the Howard government fell, Labor remedied the situation with the Fair Work Act. A Better off Overall Test was implemented, which was a line-by-line mathematical test designed to ensure that no worker would ever be worse off than the award rate of pay, in dollar terms, by virtue of an enterprise agreement.

Unfortunately, though, the Fair Work Commission did not apply the BOOT consistently. Many agreements were approved that left individuals earning less under an agreement than they would under an award. Some large employers, with the agreements of certain unions, made hay with the situation.

When these cases came to light, bad publicity ensued, agreements were terminated, and from there on in FWC consistently and carefully applied the BOOT.

Some large employers, particularly in the fast food and retail sector, have been unhappy with the situation ever since.

So for years now, there has been significant pressure on the Coalition from business groups to “give the BOOT the boot” and make it easier for agreements to be struck that may leave some ­individuals financially worse off, as long as the workers as a group are not being disadvantaged.

For those frustrated by the government’s caution when it comes to industrial relations reform, it is important to remember a couple of key points. One is that it only takes one example of a person who has had their pay cut to make a campaign that can bring down a government. The second is that the current government, through its survival instincts, is resolutely committed to avoiding the mistakes of the past.

This is the reality of the impossible situation that a Coalition government will always find itself in. It is due to self-inflicted legacy issues, inherited from the past.

Further, back in the day, when the furore over Work Choices was doing the government real damage and they needed some support, there was none to be found. The employer groups who had led them to battle had fled for the hills. The government was left to sink, alone and friendless. That mistake won’t ever be made again.