the Banner Bright

The full bench of the Fair Work Commission has made an important decision to protect workers’ privacy. A casual sawmill operator, Jeremy Lee, was sacked when he refused to provide his biometric data so that the company could introduce mandatory fingerprint scanning. He argued [$] that upholding his sacking would change “the nature of the relationship between employer/employee from an exchange of labour to one which includes the collection of employees’ sensitive information”. The FWC ultimately agreed, ruling that “administrative convenience” for the company was not a good enough reason to trample Lee’s privacy. A company must instead prove that biometric scanning is “reasonably necessary” — and less intrusive alternatives must first be considered. The Commission also clarified that “any ‘consent’ that he might have given once told that he faced discipline or dismissal would likely have been vitiated by the threat. It would not have been genuine consent.”

Railcorp is a labour hire company that provides train drivers to the Roy Hill mine. It employs just over 50 train drivers through a subsidiary company. Just before negotiations for a new EBA were due to begin, they created a new subsidiary and used it to hire two new drivers, who then voted for a non-union EBA. The other 50 workers were transferred across, denied their right to bargain for an agreement. The Fair Work Commission said: “ultimately the position of those employees would not appear relevant to the approval requirements imposed by the Act… albeit the notion of them becoming employees was clearly contemplated.” This corporate structure shell game is becoming widespread in certain industries. BHP has created its own labour hire company, secretly made a non-union EBA with nine employees, and now intends to transfer hundreds of workers at mines around the country onto that EBA. The AFR reports [$] this is the result of “eighteen months of hard thinking” by BHP managers, will cut wages by up to $55,000 for a typical roster, and will allow BHP to unilaterally move workers around the country. This loophole in our bargaining system must be shut down.

Australia’s far right is having a breakout moment — perpetrating a major terrorist attack, allegedly coordinating with Liberal MPs [$], having a Senator openly oppose “black” migration to Australia, assaulting journalists, allegedly building pipe bombs, infiltrating the National Party, cutting preference deals with the National Party, and so on and so forth. This doesn’t occur spontaneously — the spread of these ideas has been going on for years, if not decades, without being taken seriously by the authorities. In that time, Andy Fleming (known as Slackbastard) has been researching right-wing extremist networks, exposing and documenting their ideas and organisations. When you see mainstream news reports on these topics, the underlying source of their intelligence is Andy’s blog, which he has produced voluntarily for fifteen years. He’s launched a Patreon to support his work — be generous.

The new issue of The Tribune was released today — it’s well worth subscribing — and one highlight is Dawn Foster’s passionate call for an urgent focus on eliminating child poverty: “Child poverty should be ended not because children are particularly innocent and therefore incapable of changing their circumstances: that presupposes that some poverty is deserved, and that adults on low incomes are not also subject to economic structural violence, but simply not trying hard enough to lift themselves out of poverty. No poverty should exist, but child poverty is most often at the root of all poverty — few who grow up in it escape it in later life. … Children can’t wait years for policies to be developed that offer limited sticking plasters for the misery they experience: every skipped meal or cold night is, step by step, depriving a child of the life they deserve. Fulfilling human potential means battling for children’s happiness and for human rights to be taken seriously: work has to pay more, but the state must also provide economically and materially.” (The magazine also launched its companion podcast, Tribune Radio; the first episode is an interview with Foster.)

Labor has announced two major childcare policies as the election campaign steps up a gear. First, a significant increase in fee subsidies, especially for low-income households; in response, Morrison’s Minister for Education, Dan Tehan, shrieked, “This is a fast track to a socialist, if not communist, economy.” Second, funding a 20 per cent increase in childcare wages over the next four years. A partner at Deloitte Access Economics said this was unrealistic “unless we think that perhaps we can have robots looking after our children… literally, that’s the next sort of leap that we’re talking about.” This shows the disconnect between what right-wing economists think childcare workers do (changing nappies, raking sandpits) and what they actually do (all of that and also teaching children during a vital developmental stage). Bill Shorten gets it; in his speech he used the better term, “early-years educators”: “Teaching our children in the early years is one of the most important jobs there is. And yet in our country it is one of the lowest paid jobs in the country. And — like it or not — that sends a message. It speaks volumes for what we value as a nation, for the priority that we place on the betterment of our children and the respect we display to the people who teach them. … A 20 per cent pay rise for the early educators because we value early education.”

Adele Ferguson’s exposé of bubble tea chain Chatime — which could owe $10 million in unpaid wages — is once again damning of the Fair Work Ombudsman. In 2018, it identified a $350,000 wage rip-off at Bakery Venture, but only issued a caution. Some of the same directors are involved at Chatime, including one who FWO says “was involved in the contraventions of [Chatime] during the assessment period” and was legally “knowingly concerned” in undercutting the award. But when a five month audit at a subset of Chatime stores found over $175,000 of underpayments, “The ombudsman decided not to make this investigation public or issue any penalties.” Meanwhile, leaked emails from Chatime’s lawyers show they assessed the underpayment of one worker as “at least $32,000 (ex super)” but suggested that her visa status should be exploited to make a lowball offer of $20,000. (Bear in mind that it is illegal to contract out of the statutory or award minimum wage and superannuation.) The law firm that gave this advice is “a subsidiary of the state’s peak business organisation, NSW Business Chamber.” The culture of exploitation in Australia’s business community is deep, and it is supported by a web of business consultants and advisors — and, sadly, the so-called Fair Work Ombudsman, too.

Bill Shorten seems to be positioning himself to reject key union demands if he wins the election. He told Nine newspapers: “We know that the bargaining system’s not working as it should. But I’m not convinced that we need to have, you know, everyone going into industry bargaining.” If he is saying that it should be up to the parties to determine whether they use industry or enterprise bargaining, fine. But if he is hinting that only a select few industries would be allowed to bargain at a higher level, then he is planning to breach our ILO treaty obligations: “According to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law… Legislation should not constitute an obstacle to collective bargaining at the industry level.” Adam Bandt has promised the Greens will use their influence to support industry bargaining, including by amending any back-pedalling bill proposed by Shorten: “Labour laws shouldn’t hold back one group of workers at the expense of others… Industry-wide bargaining should be available to everybody.”

WA’s Environmental Protection Authority rejected a proposal for a new uranium mine because it would put at risk the “viability as a species” of three species only found in the proposed mine area — in other words, they face extinction. But the WA Liberal environment minister approved it anyway, just 16 days before the state election was called. In applying for federal approval, the miner, Cameco, told the government a proposed condition that it must “Demonstrate that no species would be made extinct by the implementation of the Project, prior to the commencement of the Project” was “not realistic and unlikely to be achieved — ever!” The Liberal environment minister approved it anyway, just one day before the federal election was called. She refuses to be interviewed about it. RMIT’s Gavin Mudd wonders, “ethically, what right do we have to wipe out a species? They have evolved and survived just like us. At the end of the day, there are much safer, cheaper, more ethical and cleaner ways to generate electricity to boil a kettle.” (Meanwhile, Scott Morrison is vacillating [$] on nuclear power plants in Australia.)

During the Hayne Royal Commission, financial regulators were criticised for their reluctance to prosecute lawbreakers. The Fair Work Ombudsman’s latest media release shows the same gutless attitude to worker exploitation. Late last year, labour hire company Agri Labour Australia settled with five workers for $150,000 over wage underpayment claims — avoiding millions of dollars of possible penalties. It is currently in pre-trial mediation in relation to another, bigger claim over allegations of similar rip-offs. At the same time, the FWO launched a limited investigation into one of the farms supplied by Agri Labour — and found over $50,000 in wage violations. But the FWO did not prosecute, instead allowing the company to make a $15,000 “contrition payment” through an Enforceable Undertaking — a legal term for a promise not to do it again. In his report, Commissioner Hayne scolded ASIC for using this approach against banks: “Enforceable undertakings might require a ‘community benefit payment’, but the amount was far less than the penalty that ASIC could properly have asked a court to impose. … When contravening conduct comes to its attention, the regulator must always ask whether it can make a case that there has been a breach and, if it can, then ask why it would not be in the public interest to bring proceedings to penalise the breach.” The Fair Work Ombudsman should take heed and toughen up.

On the anniversary of the Easter Rising, The Tribune has a good profile of “Ireland’s greatest socialist”, James Connolly. I was struck by this, from an article he wrote in 1900: “Ireland without her people is nothing to me, and the man who is bubbling over with love and enthusiasm for ‘Ireland,’ and can yet pass unmoved through our streets and witness all the wrong and the suffering, the shame and the degradation wrought upon the people of Ireland, aye, wrought by Irishmen upon Irishmen and women, without burning to end it, is, in my opinion, a fraud and a liar in his heart, no matter how much he loves that combination of chemical elements which he is pleased to call ‘Ireland.’” This quotation refers to Ireland, but applies with equal force to all hollow expressions of patriotism, and it is something to keep in mind as we approach Anzac Day in the middle of a federal election campaign.