In 2011, Zimbabwean President Robert Mugabe enacted an extraordinary law preventing employees in that country from seeking wage rises above 2.5 per cent per annum.
That last sentence is a lie. Mugabe did no such thing. Barry O’Farrell’s government did. Three years ago, the NSW government passed such a law. As a result, NSW public sector employees have been deprived of a right that is enjoyed by other workers in Australia – the right to collectively bargain for a wage increase above the inflation rate.
The legislation restricts collective bargaining on wages, capping public sector employee wage increases at 2.5 per cent per annum. Under certain conditions, increases above the cap are allowed, but only if they are offset by cost savings – inevitably, this involves the cashing out of existing conditions.
The legislation means that the state government, the employer of public sector workers, is able to fix the outcome of collective bargaining on wages before negotiations have even commenced.
Advertisement It is illegal for the independent industrial umpire to award a wage increase above the rate set by government.
While all governments, federal and state, can promulgate policies including wage limits to shape negotiations with their employees, legislating to make it illegal for employees to bargain above a certain wage rise threshold is an extreme measure.
This week, the Community and Public Sector Union, the Public Service Association of NSW and the Australian unions’ peak body, the ACTU, have filed a complaint with the International Labour Organisation alleging that NSW’s public sector wages regime is in breach of Australia’s legally binding commitments under Convention 87 (Freedom of Association and Protection of the Right to Organise) and Convention 98 (Right to Organise and Collectively Bargain).
These conventions underpin fundamental rights at work that the international community, including Australia, has committed to upholding. Other conventions relate to forced and child labour, discrimination and equal pay. While the ALP is regularly accused of not standing for anything, the reality is that there is extraordinary ideological confusion on the other side of the fence too. For decades now, great tracts have been promulgated by LNP politicians, conservative industry groups and think tankers about deregulating the market and the inalienable “freedom” of an individual to “flexibly” bargain with their employer to forge an individual employment agreement. That all such individual agreements are identical pro forma documents is an inconvenience to the doctrine and usually dismissed with equal amounts of bluff and bluster.
When it comes to the right of two or more employees to engage in collective negotiation and bargain with their employer, conservative ideology starts to fray. The labour market attracts special Stalinist treatment. Conservatives will legislate like there is no tomorrow to regulate, restrict, undermine – and all but eliminate – collective bargaining. The NSW laws are yet another illustration of that phenomenon.
Each year many employees sit down with their employer to discuss performance and pay. Imagine if it was illegal for an employee to ask for an above-inflation pay rise?
Former IPA flak and now controversial Human Rights Commissioner, Tim Wilson, lists freedom of association as one of the traditional freedoms he is committed to upholding and promoting. Freedom of association is critical to the functioning of trade unions. The right to bargain freely with an employer on work conditions is an essential element of freedom of association. Like on so many other occasions, when doing his job means speaking out in ways that might criticise or embarrass the LNP, Freedom Tim goes MIA. He has been silent about the repressive NSW laws and will remain so.
The hypocrisy doesn’t end there. Each and every state election now includes a mandatory competition between politicians for supremacy on “law and order”. The rule of law is earnestly invoked by a parade of political leaders against a backdrop of Australian flags at both federal and state level. NSW Premier Mike Baird recently declared his support for the NSW police in “protecting public safety and the rule of law”.
Time will tell whether the unions’ complaint to the ILO is upheld. If it is, and the laws are found to be illegal, don’t hold your breath. When it comes to Australia’s international legal obligations, the rule of law is routinely ignored.
Look no further than the Human Rights Commission’s recent Forgotten Children report which stated: “The laws, policies and practices of Labor and Coalition governments are in serious breach of the rights guaranteed by the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.”
We all know how that report was received by the federal government, don’t we?
This article originally appeared in The Sydney Morning Herald.