ou wouldn’t steal from your workmate: will unions’ bargaining levy push succeed?

  • Published January 30, 2023

Sydney Morning Herald, 30 January 2023

Remember that early 2000s warning on every home DVD that wagged its finger against video piracy?

“You wouldn’t steal a car ... You wouldn’t steal a handbag,” the jagged text pulsed in between footage of said petty crimes, while a young woman sat at her fridge-sized computer downloading something cool and nefarious.

Around the same time, a host of major unions were mounting a similar argument, that people in their midst were accessing the same benefits that others were rightly paying them for, and the freeloaders should be stopped.

Neither punt was hugely successful.
The first because, although the principle was sound , it was laughable that illegally downloading a movie could be compared to auto-theft, or swiping a handbag from a diner in broad daylight.

The second failed after interventions by the government of the time, and the courts.

In a case brought by Electrolux against the Australian Workers Union, the High Court found in 2004 that levying service fees against non-members wasn’t something that could be bargained on, and wasn’t relevant enough to the employer-employee relationship to be captured by workplace legislation.

Regardless of that case working its way through the courts, then-industrial relations minister Tony Abbott introduced legislation in 2003 to outlaw bargaining fees, framing it as a principle of freedom of association.

Within the labour movement, the issue is known as the “free-rider” problem: workers benefiting from collective agreements negotiated on their behalf despite not paying the union fees that feed the organisations charged with giving those same workers a leg-up.

The same, worthy argument is always deployed. We live in a society in which people and entities are compensated for the services they provide. So, cough up.

Australian Manufacturing Workers’ Union secretary Steve Murphy put it like this earlier this month: “Imagine walking into a fishing club or a footy club and demanding all the benefits without being a member. You wouldn’t even get through the door.”

Health Services Union national president Gerard Hayes went so far as to call the notion of not paying your dues un-Australian.

Hayes’ was interviewed by journalist Hamish McDonald on ABC Radio National last month, during which, McDonald laughed at the prospect of Australians feeling naturally obliged to pay their way, suggesting we as a nation love free things.

The thing is, McDonald had a bit of a point. And, like the video piracy ad, it’s not really apples and apples.
I’d probably be a millionaire if I had a dollar for every time sometime told me, a journalist, that they steer clear of our website because it has a pay wall.

Do I want readers to pay for quality journalism? You bet. But because it was the norm for such a long time to let readers peruse news sites for free, they’ve been conditioned to expect it. If you’re someone who has been taking advantage of a free service for a long time, why would you want that to change?

Let’s move to the freedom-of-association argument. Unions argue the whole concept has been perverted into the freedom not to associate.

The case from academics, such as RMIT’s industrial relations expert Anthony Forsyth, is that charging non-members a levy for bargaining skirts that dilemma because they are not being asked to join the union, but merely stump up a bit of cash.

Sure, but if you’re legitimising that process, then you’re also potentially delegitimising those non-members’ status, and fanning the peer pressure that flows from the new arrangement for them to join their union.
Simply put, that person would be confronted with having to make a choice about joining an organisation they had hitherto not thought about. And if the choice is to pay a year’s worth of union fees or a levy that is basically the equivalent, then it may be no choice at all.

There’s also the contractual argument: “I never asked you to do this for me, so why should I have to pay you for it?”

Here’s the reality check: life is full of scenarios requiring us to doll out money for services over which we are given no choice: council rates, compulsory third-party insurance, hell – income tax. We pay these because we choose to enter into in a social contract as someone who is a lawful, contributing member of society.

Workplace agreements already come at a financial cost to many. That is how it works. And if you’ve celebrated a pay rise through an enterprise agreement in some way, you should probably acknowledge that.

But the social contract of collective bargaining seems to have been evaporating for a while, as shown by declining rates of people covered by enterprise agreements, and people who are union members.
In a speech to the Australia Institute in February 2018, then-ALP national president Mark Butler (now the federal Health Minister) said unions were not able to keep “plowing resources into negotiating and enforcing superior wages and conditions paid for by a diminishing number of union members.”

“As all economists know, leaving a ‘free rider’ situation unaddressed will usually mean that the ever-diminishing pool of contributors falls below a critical mass – with the result that the benefits disappear altogether and everyone ends up worse off,” he said.

“That’s exactly what we’re seeing today with the plummeting rates of collective bargaining in the private sector.”

In 2023, union leaders are saying that being tasked with implementing generational reforms under new multi-employer bargaining laws means their resources will be stretched further to hatch out sector-wide pay deals.

Bargaining fees are likely to be brought up by executives in a meeting of Australian Council of Trade Union and state and territory trades hall secretaries today. If momentum does gather behind this, the obvious question will be: how do unions market the prospect of a fee to the average worker, “how do we make this worth your while?”

Given the historically low rate of membership across the country, they’ll be no doubt asking this already.