This is why our workplace laws are unjust

Journalists mass during industrial action at The Age in March 2016. Photo by Jake Wishart

IT’s never easy for workers to take industrial action and the decision to do so is never taken lightly.

Australia’s highly restrictive workplace laws only allow protected industrial action during a period of bargaining for a collective agreement — and even then plenty of advance notice must be given by the party taking action.

Spontaneous action is rare.

Journalists as a whole, while good, solid union members, are not particularly militant.

They know and appreciate that they mostly have well-paid jobs with decent conditions (won over many decades by their union) and they are luckier than most that they are doing jobs they love.

What does fire them up, however, is when they see their ability to deliver quality journalism to their communities and readers being compromised.

At stake was quality journalism

When journalists at Fairfax Media mastheads took industrial action exactly a year ago, they did so for that reason: to protect quality journalism at their mastheads from being destroyed by more cuts to editorial staffing resources.

The action was taken after Fairfax management announced another round of redundancies totalling 120 jobs in its Sydney and Melbourne metropolitan newsrooms.

This comes after hundreds of positions have already been axed in recent years.

At stake was quality journalism itself.

Fairfax journalists are proud of the mastheads they work for and the journalism they produce. They want to protect that quality and independent journalism.

The anger and disappointment on the newsroom floors on the day of the announcement was red hot, and there was no dissent when MEAA members voted to walk off the job for 72 hours.

They did so knowing that they would be docked pay for their action, and they were aware that their action would be unprotected under workplace law.

But journalists felt the threat to quality journalism from the proposed 120 job cuts was so serious that they had to take a stand.

They were joined by colleagues in Canberra, Brisbane, Perth, Newcastle and Illawarra.

The readers clearly felt the same way, with more than 10,000 signing our online petition of support within 48 hours of it being launched.

To their credit, the management of Fairfax Media never sought to stop the action by going to the Fair Work Commission.

The following Monday the action was over and the journalists went back to work.

The climate between journalists and management remained cool, but everyone was determined to work together to continue to produce great newspapers and websites.

The proof will be on Friday night, with journalists from The Age nominated for 32 awards at the Melbourne Press Club’s Quills.

Journalists at Fairfax believed then, and continue to believe that there is a better, smarter way to make savings than cutting at the very core of what makes this company and its mastheads special.

As a result of their action and the community support, the company agreed to consider some alternative cost-savings that reduced the final head count.

Limited right to strike

Some weeks later, both the journalists’ union, the Media, Entertainment & Arts Alliance, and Fairfax were contacted by the Office of the Fair Work Ombudsman demanding the names, addresses and phone numbers of every person who took industrial action in March.

The investigation was conducted “to determine whether the employees of Fairfax Media have contravened section 717 of the Fair Work Act 2009 by participating in unprotected industrial action commencing on 17 March 2015 (sic)”.

Each worker who took industrial action could potentially have been fined up to $10,800.

Fortunately, in August, the FWO called an end to its investigation and did not take any further action.

But the FWO investigation did highlight two important issues.

The first is that the rights of workers in Australia to take action over issues that they passionately believe in are woefully inadequate.

Nothing is more important to a worker than having a job, yet when they face the threat of losing their jobs — as is the case at Fairfax — they can be penalised if they take industrial action to express their concerns or attempt to change the outcome.

The freedom to take collective industrial action, such as a strike, was enshrined by convention 87 of the International Labour Organisation in 1948.

But time and again, Australia’s laws have been found to not meet the standards of the ILO — even now, under the Fair Work Act.

Under Australian law, workers are effectively being restricted to action during a small window when pay negotiations are in train. When they want to protest over genuine concerns like workplace safety or job security, or issues of public interest, they face the prospect of being prosecuted.

Fairfax journalists are not the only ones to have come under the FWO’s scrutiny for what most Australians would regard as fairly benign exercising of their rights.

At the same time, the FWO also investigated Maritime Union of Australia over the MV Portland and Hutchison Ports disputes to protect the Australian coastal shipping industry and stevedoring jobs. In a similar vein, Fair Work Building and Construction also sought fines of $10,200 each against 76 construction workers who attended a jobs rally in Perth in 2014.

Workers have an unequal bargaining position in the workplace, and the freedom to withdraw their labour is one of the few tools at their disposal. It’s pretty reprehensible that a government agency would look at penalising workers for expressing that freedom — particularly when those workers have already suffered financial loss for their strike action.

It was this imbalance that the new ACTU Secretary Sally McManus was referring to when she said on the ABC’s 7.30 program “our current laws are wrong. It shouldn’t be so hard for workers in our country to be able to take industrial action when they need to”.

What are the FWO’s priorities?

The second issue highlighted by the FWO’s investigation at Fairfax was the priorities of the Ombudsman itself — and indirectly, of our workplace laws

The FWO was established as the national workplace regulator, and among its duties is ensuring compliance with the Fair Work Act, awards and agreements that provide the safety net for all workers. Instead, it seems to often do the exact opposite.

There is no shortage of work to keep the FWO busy. Every day unions and workers report scores of cases of non-payment or under-payment of wages, failure to pay for overtime, and numerous other breaches of employment standards.

With its hands full, surely the first priority of the FWO should be to police Australia’s workplaces to prevent the exploitation of workers, not expending valuable resources on persecuting a few hundred journalists who took action to protect jobs and their craft.

The FWO has been far from diligent in protecting Australian workers as the high-profile cases of wage fraud and exploitation in the retail, fast food, and food production sectors has demonstrated.

Ironically, it was left to journalists at Fairfax, who exposed the scandalous exploitation of migrant workers by 7-Eleven while the FWO was asleep at the wheel. Same goes for a number of other outrageous cases involving convenience and fast food stores, horticultural workers, meat workers and others.

Without the work of Walkley Award winners Adele Ferguson, Sarah Danckert and their colleagues, those workers would still be suffering. These are the same journalists the FWO contemplated fining.

It is a sick joke that collectively, the journalists at Fairfax faced fines far in excess of any penalties 7-Eleven has been forced to pay by the FWO.

But that is the reality of our national workplace laws until something changes.

Disclosure: the author works for MEAA, the journalists’ union, and has worked as a journalist for Fairfax.

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Writer, journalist & communicator based in Melbourne, Australia. Author of Radio City: the First 30 Years of 3RRR-FM.

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Mark Phillips

Mark Phillips

Writer, journalist & communicator based in Melbourne, Australia. Author of Radio City: the First 30 Years of 3RRR-FM.

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