Dwyer, Dan --- "Something is Wrong, Very Wrong" [2006] AltLawJl 1; (2006) 31(1) Alternative Law Journal 3

SOMETHING IS WRONG,
VERY WRONG

Many years after the famous ‘Lygon Log’ of claims,^[1] the same claims today might well be called the ‘Long Bay Log’, for you could reside in the largest jail in New South Wales if you do not pay the fines.

No, we are not talking about the controversial new sedition laws. We are not talking about terrorism laws. We are talking about the workplace regime that we work under, and the regime our children will work under. The federal government is bringing us into the 21st century.

Consider this log of claims from workers:

We seek that employees have access to unpaid trade union training

We seek that the Union represent us in negotiations

We seek a union family picnic day

A trade union seeking these three clauses in a Workplace Agreement will commit three unlawful acts. The person writing the letter will commit three unlawful acts. All that has to be satisfied is three conditions set out in s 101M of the Workplace Relations Amendment (Work Choices) Act 2005:

• a person seeks to include a term in a workplace agreement in the course of negotiations or in a variation

• the term contains prohibited content

• the person is reckless.

The Union will face $100,000 in fines ($33,000 for each). The person faces fines of $20,000 ($6600 for each), amongst other potential flow-on effects.

The CEPU has created the ‘Half Million Dollar Letter’ [see opposite page] setting out 12 of the usual claims that one might find arising in negotiations. Each is now expected to be ‘prohibited’ and the total maximum fines will reach $500,000.

What are these terms containing ‘prohibited content’ that are so threatening to society that even mentioning them in the course of negotiations can land you in trouble? The Act defines an anti-AWA provision (that is a provision restricting an employer’s use of individual agreements) as prohibited content. The Act also says that Regulations (which are to date unreleased) may set out further what is prohibited content.

Other expected ‘prohibited content’ are set out in the Minister’s announcement in the Workchoices Booklet issued by the government in 2005.This includes clauses such as those:

• restricting the use of independent contractors or on-hire arrangements

• allowing for industrial action during the term of an agreement

• providing for trade union training leave, bargaining fees to trade unions or paid union meetings

• providing that any future agreement must be a union collective agreement

• mandating union involvement in dispute resolution

• providing a remedy for unfair dismissal.

A person could safely ask for all sorts of illegal things — for example restrictive trade practices, discriminatory terms, boycotts, cash payments — and these will no doubt be refused — but merely ask for a union family picnic day and you may end up in jail for not paying a substantial fine. Finally, and even more frightening, the action does not have to be deliberate, and a contravention may occur if a person is found to be ‘reckless’, and a court will have to decide this matter.

Given the seriousness of these laws in terms of freedom of speech and penalties, the government has taken the extraordinary decision to leave these matters largely to the whim of the Minister — the prohibited matters will be mostly contained in regulations issued administratively by the Minister, without debate.

John Howard once claimed that he would strenuously defend our rights to free speech, even if he didn’t agree with them. Of course many of our ancestors died defending those rights. But it seems these heroic sacrifices have been trashed for the cause of ideology. The right of free speech will no longer apply to a worker, a worker’s representative, a union, a lawyer or even a citizen!

DAN DWYER

Communications, Electrical and Plumbing Union of Australia.

---

^[1] Unions in the federal jurisdiction need to establish a dispute, and this is done with a log of claims. Many used the standard form described as a Lygon Street log (referring to the place where the log was first drafted, Trades Hall, Lygon Street, Melbourne).