Published in June 2006 Australian Longwall Magazine

The laws have the support of employer groups such as the Business Council of Australia and the Australian Chamber of Commerce and Industry, but have been fiercely opposed by the Australian Council of Trade Unions (ACTU) and the Australian Labor Party.

The coal mining industry has voiced concerns over the new system since its inception, declaring that the laws reduce the rights of workers and their access to entitlements.

The Construction, Forestry, Mining and Energy Union (CFMEU) has labelled the new system “the worst industrial laws for over 100 years”, saying the legislation stringently controls every aspect of union activity and creates legal opportunities for employers to slash wages and conditions.

CFMEU general president Tony Maher said coal mine workers now had to deal with employer bargaining strategies seeking to put workers on individual contracts (Australian Workplace Agreements) and remove conditions.

An AWA can override employment conditions in state or territory laws, except for occupational health and safety, workers’ compensation or training arrangements.

“Individual contracts will become compulsory at every workplace as employers so decide. Nearly every new coal mine opens with AWAs being a condition of the job,” Maher said.

Maher said for workers who are part of a strong union, fighting for a collective bargaining agreement is the best choice, even though there are now greater restrictions on industrial action.

Under the laws, before protected industrial action can be taken, 50% of eligible employees need to vote in a secret ballot, and of those, 50% need to vote in favour of the industrial action.

In mid-May 2006, United Colliery workers in New South Wales became the first group to hold a secret ballot under the new laws and begin protected industrial action.

Workers at the mine called for union action after their employer, Xstrata, refused to budge on the terms for a replacement certified agreement.

The CFMEU maintains that the industrial action was successful because of the significant time, money and advice invested by the union, not because the process itself was efficient.

CFMEU national legal officer Alex Bukarica says the successful action at United will not be easy to replicate in workplaces that are less unionised and maintains the ballot process was both “unnecessary” and “a waste of time”

However, the Federal Government has hailed the United case as evidence that WorkChoices still allow for strikes when most workers feel it is necessary and does not unfairly restrict industrial action.

Maher said there was no doubt the laws would make industrial action nearly impossible for workers with less finance and access to advice.

“Just because we could steer our way through the maze this time doesn’t validate the laws, it means we have paid good money for good advice and been very careful,” he said.

“At least now unions know you can do it, but if employers want to challenge various steps along the way it will take a lot longer and cost a lot more money.”

Maher said WorkChoices had already affected the coal industry in a range of ways, including tightening union officials’ right of entry, excluding the provision for union health and safety training and reducing miners’ long service leave entitlements.

Under the laws, union officials do not have an automatic right to enter workplaces. An official who wishes to enter a workplace must hold a federal right of entry permit and even with the permit, conditions apply to right of entry.

Maher said a big worry for the industry was that provisions for leave to attend training, including health and safety training provided by a trade union, are now prohibited content in enterprise agreements.

At a joint press conference in May, Maher along with AWU National Secretary Bill Shorten and ACTU president Sharan Burrow said the Government’s ban on union health and safety training could lead to an increase in health issues, accidents and even deaths in Australia’s mining industry.

They said under new IR laws, unions looking to include union safety training in a work agreement face fines of $33,000.

“The practical effect of that is that we’ll continue to convene valuable training courses and some employers will allow their people to go and others won’t, which is simply not conducive to the best health and safety outcome,” Maher said.

“The courses will still be run, but employers won’t be obliged by a provision to let people go – it will be at their discretion.”

Union OH&S training benefits are reserved for existing employees but as new workers join the industry under new contracts and old agreements expire, the benefit will be lost.

Workplace Relations Minister Kevin Andrews has said WorkChoices laws do not override State OH&S provisions that mandated training.

He said WorkChoices simply prevented union-led training being included in employee agreements. In practice, this has meant the removal from agreements of clauses providing leave for union training, but the approval of clauses dealing with leave for OH&S and other training where the word union is not mentioned.

“Occupational Health and Safety is a State responsibility and the new legislation specifically maintains State and Territory jurisdiction over OH&S,” Andrews said.

“There is extensive State and Territory OH&S law and if an employer fails to meet their duty of care to provide a safe workplace, a range of strong penalties apply under State and Territory OH&S law.”

Maher said the current resources boom and skills shortage had both contributed to a high standard of wages in conditions and agreements. He said the real effect of the new laws would come when people are scrambling for fewer jobs.

“The state of the industry means that employers aren’t interested in cutting wages, but that will change when the commodities market turns down. So the worst is yet to come in other words,” he said.

“The campaign goes on to get rid of the laws and get rid of the government that gave us the laws. That’s the big challenge, but in the meantime you’ve got to be able to operate, which means doing what you can to get agreements.”