I published this in 2005 against WorkChoices.
Depressingly, PM Rudd is doing much the same!
‘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.’ USA Republican President Eisenhower.
‘Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.’
This argument from Clyde Cameron, Labor Minister in the Whitlam government, applies to the Howard government.
The unfairness of Work Choices is well known. Along with taking away many workers’ rights, Howard has also unfairly removed our limited legal right to strike.
Howard’s spin ‘We won’t remove the right to strike’ tries to hide the repressive changes.
Work Choices makes legitimate union industrial action ‘unlawful’. Striking workers protesting for their legitimate workplace and economic interests risk new penal powers. The strategy to legally suppress strikes is back. It is first used against building and construction workers.
These 9 further limits on the right to strike are not warranted and most unfair.
The devil is in the detail.
1. Minister Andrews has unprecedented power to intervene to halt any strike. This was formerly only by the Australian Industrial Relations Commission or Courts; not the Minister!
Andrews power stopping strikes in ‘essential services’ is not limited to the police, but covers any corporation, citing car, mining and power companies. University workers, nurses and teachers are unjustly targeted.
2. Compulsory, complex, secret ballots have now to be conducted before taking lawful protected action.
Ballots were formerly voluntary. Unions used processes, the three days notice.
Work Choices compulsory ballot requirements are prescriptive with employers challenging the ballot process with legal technicalities.
In practice, this delays, frustrates and severely restricts protected action enterprise bargaining.
Little practical choice to legally strike remains. Workers formerly democratically voted at meetings (at times with postal ballots) so there was no lack of democracy as Andrews alleges.
The double standard is clear, as employers do not have to compulsorily ballot shareholders before locking out their workforce, but retain their power with three days’ notice to lockout to force AWAs.
This imbalance in bargaining power for corporations is the worst in the OECD world.
3. New provisions outlaw basic union rights for industrial action for industry or pattern bargaining. No choice here, as there is no right to strike outside of the single enterprise.
Nowhere else in the Western world is pattern or industry or national bargaining unlawful.
This is against International Labour Organisation’s (ILO) protection for the right to strike for pattern or industry bargaining.
4. If workers do have a successful ballot, then the lawful strike can be stopped.
One amendment, with wide ramifications, allows third persons affected directly or indirectly by industrial action (other than the employer involved) to halt protected legal strikes. By definition industrial action affects third parties in some way. So other businesses affected or other persons, such as students or patients can stop lawful strikes. No choice for the right to strike here. Other sections similarly halt strikes.
5. Unions pursue claims to encourage unionism and many employers agree.
Unbelievably in a system based on ‘voluntary agreement’, employers and workers are now banned from reaching agreement on such claims, called ‘prohibitive content’ in the new regulations.
It is unlawful to bargain with industrial action for legitimate union claims: such as union rights, training, no AWAs, fair dismissal treatment and union involvement in disputes. No choice for the parties to agree. Large fines are threatened.
This is Howard’s version of extreme political correctness aimed at undermining unions
6. The Australian Industrial Relations Commission, which is all but gutted of its role to prevent and settle disputes, has more powers to halt industrial action ‘not protected’.
The earlier AIRC had a discretion, ‘may’ to consider the merits and fairness whether to stop a strike. WC now compels the AIRC, ‘must’ stop strikes. Employers can easily get their law firms to apply to the AIRC for orders and courts for labour injunctions to halt a strike.
7. The formerly limited right to protected action for enterprise bargaining is narrowed. Many exceptions are listed. Any other industrial action that is not protected will be penalisable.
Workers formerly taking lawful action can now risk dismissal and victimisation and their unions fined.
All industrial action is prohibited during the agreement’s life, irrespective of the legitimate grievances.
Employer Greenfield ‘agreements’ are allowed without any workers, so no strikes.
A strike is not lawful if (inadvertently) a non-unionist is involved.
8. Howard repeals the AIRC’s role to settle a dispute before employers can take common law action for damages.
The 19th century common law tort, based on master and servant doctrine, makes all strikes unlawful. The common law returns as an employers’ legal weapon with severe damages.
9. Environmental actions green bans are unlawful.
OHS action is legally more complex.
Legitimate political protests against WorkChoices, that should be lawful in a democratic society, are threatened.
Howard during the election did not raise these restrictions on the right to strike. Nor in 2005 did he give any reasons to legally suppress strikes.
Australia is in a low strike era. Work Choices has no legitimacy as it was rammed through the Senate ignoring the voice of working families and despite public hostility.
Powerful corporate associations lobbied Minister Andrews to remove the protections for effective lawful strikes.
Howard targets his biased eyes on employees taking legitimate strikes over workplace grievances as ‘disruptive elements’, ‘militants’, to use against unions in a ‘law and order’ campaign.
Howard first outlawed the right to strike specifically for building unions in August 2005. The new building industry police force has incredible authoritarian powers.
Building workers basic civil rights to silence and not to incriminate yourself have been removed with threat of six months jail! Howard is prosecuting 107 WA workers involved in so-called ‘unlawful industrial action’ protesting the sacking of their shop steward. They are facing fines of $28,000 and legal costs. This is savage attack. The WA 107 deserve support.
Watch out it could happen to you. “http:// www.cfmeuwa.com/cfmeuwa/supportthe107
These labour laws breaches Australia’s ILO obligations for protecting the right of workers to collectively bargain and strike without penalty.
Corporate rule is more entrenched. Howard has no right to undermine workers collectivity and hand more power to already powerful corporations.
Bosses who love power have new authoritarian weapons to suppress workplace conflict, rather than settling by agreement the injustices.
Workers and their unions in dispute over genuine grievances can be ordered back to work, fined with increased penalties, sued, victimised and even criminalised.
Blueing’ with the boss is even more legally risky. Will the Australian ‘blue’ be an endangered species?
Will this suppression of strikes work?
Historically, unions took protest industrial action to defend the right to strike.
The right to strike as a human right has been fought for as an essential workers’ freedom;
freedom from forced labour;
freedom from master and servant relationships;
for union freedom of association;
as an essential means for collective bargaining to promote the social and economic interests of working people;
for freedom of speech and as a civil and democratic freedom in a democracy.
strike as a last resort
200 years ago Colonial Australia’s penal colony used penal powers punishing unionists. Now penal powers return. Howard’s extreme right wing government is armed ready to legally suppress strikes. But Australians don’t want to go back to the penal days of masters and servants, or wage slaves with forced labour, or disciplining or fining workers on strike.
The ACTU’s www.yourrightsatwork.com.au campaign A Fair Go at Work Collective Bargaining includes the right to strike without penalties.
Chris White lives in Canberra and researches labour law.
Dissent no 21 2006
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