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Selective Civil Disobedience

Newly appointed ACTU Secretary, Sally McManus, made headlines this week by declaring that unions had the right to break “unjust” laws. Now “unjust” is quite a subjective term and one might wonder what criteria she would use to determine which laws are unjust. It takes little investigation to ascertain that her definition of unjust covers any law she disagrees with!

Now we should not dismiss her statements lightly. Civil disobedience has a place in a liberal democracy. History shows that many of our greatest reformers ended up strengthening our democracies by indulging in civil disobedience. It was through such protests that activists like Ghandi and Martin Luther King were able to reform public opinion to create more liberal societies.

But there seems to me to be a world of difference between the efforts of such people and what the union movement is suggesting. When Ghandi, for example, indulged in civil disobedience he did so with the full knowledge and acceptance he would probably go to jail. His conviction was such that he was prepared to accept that outcome. What’s more Ghandi and his ilk held peaceful protests. If you have ever observed a CFMEU picket line it is apparent that the protests Ms McManus has in mind are unlikely to be peaceful!

I doubt that Ms McManus’s union mates are prepared to make the sacrifices of Ghandi in pursuit of their goals.

The Heydon Royal Commission into Trades Unions showed that unions, particularly the CFMEU, held little regard for the law. What’s more no individuals normally were held accountable because the union was prepared to pay their fines just as a normal expense of doing business. Very few union officials have been jailed for breaking the law except for those exposed for gross corruption

Accordingly, as much as Ms McManus might like to think otherwise, it is difficult to perceive of these union lawbreakers as great social reformers.

So then there appears to be an ethos among union officials that they should be able to break the law, if they disagree with such law, but there should be little or no consequences for doing so.

That this is a very hypocritical point of view can be easily shown.

The union movement believes it can break the law because the Fair Work Commission stacked with Labor appointees in considering a review initiated by a Labor Government into penalty rates came up with an answer that didn’t suit them. They make noises about how unjust such a decision is and will not accept the umpire’s decision.

Let us now look at an alternative point of view.

Suppose I am masochistic enough to be a small business owner. As a management consultant I have dealt with many such people. These people generate most of the jobs in the Australian economy. Surely in this age of high unemployment we would be well-advised to help these brave people prosper. Let us assume that we should examine such a small business that runs a small restaurant.

As the proprietor, it is galling that there is reasonable demand for my services over the weekend and especially Sundays. But because of our anachronistic industrial laws if I open my restaurant on Sundays I have to employ my staff at double time. My wife and I try to open on Sundays just manning the place ourselves and with help from our older children. This enables us to turn some profit on Sundays but after months of this we are worn out.

Consequently I take the law into my own hands and cast about for a couple of people that are happily prepared to work for less than double time on Sundays.

I can easily rationalise to myself why I might take this course of action. In the early years of the twentieth century when such laws were developed, Sunday was a special day. No shops opened and many citizens were devout Christians and attended church on the day. But in contemporary Australia, Sunday is not particularly special for most of us. Indeed for many they welcome the chance to do their shopping and afterwards have a leisurely bite to eat in my restaurant. How could we now possibly condone this impost on employers preventing them from providing the services the public demand? Consequently I come to the conclusion that this is an unjust law and have no qualms in breaking it,

This arrangement seems to work to the satisfaction of all concerned. My employees are happy with the remuneration I have offered. My customers appreciate that I can now provide full service for them on Sundays which enhances the experience of their weekends. And my wife and I get to take a little time off work.

But somehow the union gets wind of what we are doing and runs off to the authorities to “dob me in”. I am hauled before the Fair Work Commission, compelled to pay my weekend employees the extra money they would have been entitled to under the award. And I cop a hefty fine as well.

Now I believe that I have far better justification than that which the union uses when it breaks the law, and what’s more I am faced with a real penalty that might indeed force me out of business. I ruefully contemplate that the outcome of the union breaking laws under their dubious calibration of injustice has nothing like the consequence to them that it has to me. What’s more without their intervention my employees, my customers and I were quite happy with arrangements I had come to.

I guess the nomenclature that is used in industrial relations provides a clue to our dysfunctional approach to employment. The term we use for the additional payment for people working outside the “normal” hours of employment is “penalty” rates. That is an employer is penalised for having to engage someone to work such hours. Whilst I believe it is appropriate to dissuade employers from working their employees excessive hours and there is a reasonable justification for overtime payments, in a society where there is high unemployment and even higher underemployment, it seems counterintuitive to penalise employers for offering additional employment opportunities just because such opportunities are outside the hours prescribed a hundred years ago in an outdated award.

No doubt Ms McManus will rant and rave about how I have deprived workers of their rightful wage entitlements. She is unlikely to acknowledge how my breaking this injust law actually provided more employment opportunities than I would otherwise have offered.

It is also unlikely she will acknowledge how in her enterprise agreement negotiations she has allowed such penalty rates to be put aside for the big businesses that she cultivates because they are prepared to allow her unions comfortable access to their employees. It is apparent then that the sacrosanct penalty rates are only a problem for small businesses that don’t cosy up to unions.

The union movement in recent years has moved away from its traditional role of protecting the working conditions of ordinary workers. Even though they represent a declining portion of the workforce, their skills at marshalling political influence means they probably impact our lives more than they ever have. It is hard to believe that the Labor party has ever been more in the thrall of the union movement than it currently is. They command great wealth, a considerable amount of which is derived from their dubious arrangements with major employers. They are able to mobilise thousands of volunteers to support their political campaigns and they are quite skilful in their marketing techniques. They are a formidable political foe and their undoubted power now leads them to believe they can break the law whenever it suits their causes.

One must admit that the union PR machine is very effective when so many Australians have been deluded into thinking they somehow occupy the high moral ground! I have strong enough misgivings about the conduct of many unions as it is, without encouraging them to break even more laws! We need to be concerned about the impact on our society of the new ACTU Secretary’s disregard for the law.

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  1. 3 Comment(s)

  2.   By David A Hood AM on Mar 26, 2017 | Reply

    Just letting you know Ted, that I’m keeping an eye on you and your sometimes slanted views on the world. I’m referring a rather long article to you via email which points out in detail the essential good that comes from civil disobedience, but just wanted to say that I look forward to your balancing article about the corruption and massive amounts of money that big corporates spend to ensure that they get what they want from politicians. Might I say that never has the Coalition been been more in the thrall of the big corporates than it currently is. New laws are written at their behest ever sitting session to give them access to tax avoidance, subsidies, environmental vandalism, and the rights to ride roughshod over the Nation’s disadvantaged (including laws to contain the unions). Where are the strong laws to contain the corruption and bad practices of these corporates and their CEOs (who are rewarded with obscene wealth).

    I’m not defending the many unconscionable union practices that I have experienced on construction sites, but how often do you see the big corporates being criticised as you just have regarding Ms McManus’ view that civil disobedience is necessary when a law is bad for, or discriminating against a part of society?

    Seriously in the age of Trump, we need to be far more concerned about the impact of rampant capitalism, than about an occasional rant from the declining union movement.

  3.   By David A Hood AM on Apr 1, 2017 | Reply

    Ted, what is “Trackback(s)”? Your site seems to have been hacked. Highly recommended reading is a casino site. Are they sponsoring your blog site? 😐

  4.   By tedscott on Apr 1, 2017 | Reply

    I have little idea about what a “trackback” is David. I can only assume it links my site with another site. I get dozens of responses to my blog essays from dubious sources and I normally don’t acknowledge them (except from you of course!). It seems one might have slipped through. I will do my best to eliminate it. Thanks for the heads up.

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