From Penal Colony to Penal Powers

The right to strike yesterday and today

The right to strike is always agreed in principle. “We won’t remove the right to strike”, the Work Choices ads said. Employers agree “subject to restrictions” to protect their class interests. The Australian Council of Trade Union policy is for the workers’ right to withdraw labour without sanctions.

Labor, Green and Democrat MPs support the right to strike. Industrial relations practitioners and labour law academics, community groups and public opinion all support the principle that employees when bargaining with powerful corporations and the state ought not be denied the ability for a lawful strike as a last resort. Socialists of all persuasions have long campaigned for the widest scope for the right to strike.

Even neo-liberal right ideologue Freidrich von Hayek supported the right to strike ‘in principle’ but in practice subject to property rights.

The fierce contest is over the boundaries to this universally agreed right.

In Green Left 711, I gave some details of how Howard has delivered for the powerful corporations and their associations a strategy to legally suppress strikes. Any enterprise bargaining industrial action is risky and difficult. On the other hand the employers retain a free hand to use lockouts, unencumbered by any complex legal processes or obligatory secret ballots of shareholders!

John Howard and his corporate backers relentlessly pursue their interests in today’s class struggle, but of course deny the class nature of their attack. Ross Gittins made this clear in his May 8 Sydney Morning Herald piece ‘Work Choices stoush revives class warfare’.

In my previous article, while supporting Kevin Rudd’s policy for the right to strike for enterprise bargaining, I expressed my concerns on his unfair limitations.

That’s because the right to strike is a fundamental social right without which workers are not able to use their collective strength to improve their working and social conditions. The lawful strike is an essential means for workers in bargaining, a weapon for workers’ power, in reserve often as a threat and not used.

Moreover, attempting to suppress the right to strike paradoxically does not work, even from the point of view of the owners of capital. A key factor in provoking the strike response from unions and workers is the management and government belief that they can be eliminated.

By the same token a lawful right to strike actually places downward pressure on strikes, as the employers more readily negotiate when they have to respect the strike weapon, always available as a last resort but not so often used.

A long history

What are the justifications for the right to strike?

As a young unionist I learned how the strike weapon led to all major improvements in wages and conditions for Australian working families. It is all about workers’ collective countervailing power to employers.

I learned of the long history of workers’ struggle against the state and employer use of penal powers against strikers and their unions.

I also learned not to organise a strike unless the workers could win.

Workers struggles against penal powers have a very long history.

From the first Egyptian strikes in 1165 BC, workers have always resisted them. Historically, the justifications were for freedom from serfdom, freedom from forced labour or against involuntary servitude.

Servants wanted freedom from being tied to their master.

With the rise of British capitalism, workers formed unions and took strike action despite the law making unionism illegal. The Tolpuddle Martyrs, transported to the penal colony for violating the anti-union Combination Act, are a proud part of Australia’s history.

In 1787, even before the First Fleet weighed anchor the sailors struck over conditions and their leaders were flogged for their pains.

Australia’s penal colonies brutally repressed strikes and as nineteenth century Australian capitalism developed anti-strike laws repressed union action. The great union strikes of the 1890s were brutally crushed with lockouts and state violence.

In the twentieth century, the introduction of the Conciliation and Arbitration system replaced the “rude and barbarous” strike and lock-out. Unions conducted short strikes that although strictly illegal demonstrated worker anger about their grievances and were settled by arbitration.

Most workers turned to the Australian Labor Party to provide remedy for their demands. But at the same time the revolutionary International Workers of the World asserted the general strike as the means to challenge capitalism and were ruthlessly suppressed.

In the wages struggles of the 1960s and 1970s employers inserted bans clauses into awards, making strikes illegal. The unions developed a lengthy mass campaign against employer over-use of these penal powers. When tramways union leader Clarrie O’Shea refused to pay fines, Judge John Kerr jailed him. National strikes were immediately launched and an anonymous donor paid the fine.

After that victory, strikes were tolerated, although still strictly illegal mass action had made the penal powers a dead letter. Part of John Howard’s motivation for the repressive regime of Work Choices was political revenge against this union action of 40 years ago.

The government of Malcolm Fraser (1975-83) stiffened no-strike legislation and created the Industrial Relations Bureau to police strikes. This failed due to union opposition and the reality that once a dispute is settled employers are reluctant to have their workforce prosecuted.

With the Trade Practices Act Fraser succeeded in banning solidarity strikes and secondary boycotts, ensuring that competition law still overrides labour law to this day.

However, penal powers did not stop the ACTU’s national political protest strike against Fraser’s demolition of the Medibank health insurance scheme (1976).

Unions also campaigned with some success for legal protection against old master-and-servant common law doctrines against strikes. Employers and the arbitration system also at times exercised tolerance towards the right to strike, penalties were not sought, but rather grievances were solved by collective agreement, with arbitration in the background. Repressive tolerance prevailed.

Yet under Work Choices the old common law view is back and limited protection repealed. Judges follow the ancient precedent that strikes are unlawful as such as a “tort” that is a civil wrong and breach of contract. Howard’s strategy is to legally suppress strikes and return to the nineteenth century.

One example is the unprecedented prosecution by Howard’s political police in the Australian Building and Construction Commission of 107 Perth CFMEU unionists who struck after their shop steward was unfairly dismissed. Howard’s Gestapo-like law flouts building workers’ civil liberties, giving them fewer rights than suspected criminals.

Howard and employers will no doubt try to associate the ALP with so-called “unlawfulness” in the Perth 107 trial later in this election year. But it was Howard who with the worst legislation in the advanced industrial world made legitimate building and construction strikes “unlawful” without good reason.

As the CFMEU posters says: “When they jail a man for striking, it’s a rich man’s country yet.”
We are not corporate wage slaves to submit to every unreasonable employer demand.

Entrenching the human right to strike

One justification promoted by human rights advocates is that the right to withdraw labour is as an individual human right.

A human right is inalienable in that it cannot be taken away but must in practice be protected by the state.

For the right to strike to be effective the individual on strike must have a “firewall protection”. Apart from losing wages, no other penalties should be imposed, neither dismissal nor discrimination nor legal assault on union organisation.

To be effective this human right requires immunity from common law damages and injunctions. The right to strike should not fall foul of the ancient and unfair doctrine that it is a breach of the individual’s contract. The right to strike in solidarity should also be protected.

Today the individual working for global corporations needs protection for the collective means to exert pressure. Some balance for workers and their unions is needed against dominant global corporations. Global unionism to enforce collecting bargaining agreements with global corporations across countries needs the internationally recognised right to strike as a backup.

As a democratic civil right, the scope of the right to strike should not be restricted to wages bargaining and socio-economic issues.

Workers must be free to determine the causes they will promote by using it. Just as the Australian state does not censor the aims promoted by exercising the right to freedom of assembly, so it is not for it to determine the causes that may be promoted through strike action.

For example, green bans in response to the environmental crisis, or environmental assemblies with community support must not lead to workers or unions being penalised. The social or community values defended through action to protect the environment must take priority over short-term profit making that ruins the environment.

The ILO emphasis that all countries with agreed industrial relations systems must have labour laws to ensure the right to strike is not an extreme position.

Remember that the ILO was established in 1919 in response to the Russian Revolution, by offering unions participation in industrial reform within capitalism. These minimum ILO principles are an indication of consensus amongst governments, employer associations and unions.

The ILO does not support ‘wild-cat’ or ‘sit-down’ strikes; picketing where non-unionists or management are ‘coerced’ or a sympathy strike if the initial strike the workers are supporting was not lawful. It allows judges to repress abuses by unions; and is not in favour of ‘purely political’ strikes but accepts ‘protest strikes’ criticising a government’s economic and social policies.

This is the International Labour Organisation’s position:

“The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.” (emphasis added).

Labor MPs have supported these democratic principles. Respect for the right to strike is the least workers should expect from the ALP, especially when a Rudd government will probably not have control of the Senate.

Politicians talk about the damage caused by strikes. But the priority is the worker’s basic freedom to withdraw labour, a fair go, and an essential part of a Charter of Workers Rights.

It is not often that US Republican President Eisenhower is quoted approvingly in Green Left Weekly, but he said: “The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes, one of them is the loss of freedom.”

Published Green Left Weekly 22/6/2007

See also ˜Restore the Right to Strike” www.greenleft.org.au/2007/711/36927

right to strike

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