Right to strike to be denied by government

The Howard government suppressed the freedom of workers to associate by severely limiting the means workers have to collectively bargain, in particular prohibiting the withdrawing of their labour power.

‘Law and order’ was the political ‘spin’ used against unions, with zero tolerance allowed for so-called ‘unlawful’ strikes.

In a collective bargaining system, the strike is the workers’ ultimate sanction.[i] It is a question of power.

‘Firewalling’ the right to strike would enable workers to achieve fairer outcomes by balancing the dominant power of capital and the state.[ii] The Rudd Labor government intends to repeal some of the Howard Liberal-National government’s strike restrictions in its new FairWork Australia collective bargaining system, but not all.

WorkChoices (except for the transitional arrangements phasing out AWAs) and the entirety of the Building and Construction Improvement Act (2005) will be retained until 2010, both of which repress strikes, making formerly legitimate industrial action ‘unlawful’.

This is harsh for many working families bargaining for their wages and conditions in an unstable economic context, with the reappearance of inflation, rising interest rates, higher petrol prices, the challenge of global warming, the uncertain world financial outlook and the lingering threat of unemployment.

Trade unions have argued for the earlier repeal of this anti-worker legislation.

The following is a chapter published in Chris Sheil (ed), The State of Industrial Relations,

Evatt papers, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.

I will not deal here with the Australian Building and Construction Commission which, to Australia’s shame, amounts to a Star Chamber that serves to undermine unionism and penalise individual union members for striking, and has charged with threats of six months jail the Victorian organiser for the Construction, Forestry, Mining and Energy Union (CFMEU), Noel Washington.[iii] Rather, this chapter focuses on arguments for the repeal of the current limits on the right to strike in WorkChoices.

International standards

The federal parliamentary Labor Party defended the right to strike in opposition. In attacking WorkChoices in parliament, the then opposition leader, Kevin Rudd, for example, supported the minimum labour standards that are endorsed by the International Labour Organisation (ILO).[iv] These are ILO conventions No 87 on the Freedom of Association and Protection of the Right to Organise (1948) and No 98 on the Right to Organise and Collective Bargaining (1949), which were ratified by the Labor government led by Gough Whitlam in 1973. The ILO has consistently ruled that the right to strike is an integral part of the free exercise of trade union rights to organise and bargain.[v] United Nations covenants contain obligations to allow freedom of association for union purposes.

Article 8, 1(d) of the International Covenant on Economic, Social and Cultural Rights (1966), which was ratified by Australia in 1975, for example, provides for the ‘right to strike, provided it is exercised in conformity with the laws of the particular country.’

In 1983, the ILO emphasised:

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.[vi]

The Howard government’s contravention of its obligations under the ILO obligations resulted in Australia being listed among extreme countries.

Unfortunately, the new Labor government’s policies are also in breach.[vii]

Repression in the workplace

The Howard government’s Workplace Relations Act (1996) gave more power to employers to penalise workers who protest their grievances against unreasonable management prerogative by applying bans or withdrawing co-operation.

It was a severe ‘command and control’ regime. Management was able to more decisively subordinate their workforce. Corporations and the state were given many legal ways to apply sanctions against valid strikes. For most practical purposes, the right to strike was, and remains, outlawed.

This attack on organised labour was defeated in the 2007 election, where the ‘Your Rights at Work’ campaign was decisive. The then Labor opposition vowed to repeal WorkChoices.

Good industrial relations

Industrial relations and labour law practitioners and academics, unions, community leaders, the ILO, Australian parliamentary researchers and human resource managers have all criticised the limitations on strikes as unjust.[viii]

The very low incidence of strikes in Australia over recent years is in part due to repression.

Most human resource managers do not face strikes and, if they do, they do not use penal sanctions. Collective bargaining disputes are settled by skilled industrial relations practice.

Good employers had no issue with the right to strike in the Australian Charter of Employment Rights 2007[ix] and that proposed by former Justice Munro:

[9] Union membership: Every worker has the right to form and join a trade union for the protection of his or her occupational, social and economic interests. The worker has the right to require the relevant union to uphold its Constitution and Rules, to spend union funds and conduct activities, including affiliations, participation in community wide engagement and lawful industrial action in support of its interests, in accordance with the union’s rules free from employer and governmental interference.

[11] Collective bargaining and industrial action: Every worker has the right to bargain collectively in pursuit of an individual or collective agreement about the work relationship and, without being in breach of contract, and without threat of dismissal or discrimination, to take industrial action to protect their occupational or economic interests to secure agreement about matters that are or are reasonably related to work.

Such industrial action should be taken in accordance with legislated procedures enabling exercise of the right in a manner consistent with the ILO standards to which Australia is bound.[x]

Why protection?

Legal protection of the right to strike is essential because the ancient British master and servant common law doctrines of tort, which say that strikes are unlawful, and a breach of contract can still be applied by judges. ‘Protected’ industrial action for enterprise bargaining was introduced by the Keating Labor government in 1993 and supported by the ACTU and employers.[xi] This exists (still, but with much less protection) so that any law against strikes does not penalise individuals or their organisation during bargaining periods. But withdrawing labour outside of the bargaining period can still result in judges applying penalties based on torts law.

The common law against strikes breaches ILO norms.

The ancient common law torts of ‘watching’ and ‘besetting’ still threaten legitimate picketing, such as the mass community assemblies in the Waterfront Patricks and MUA contest.

Many in the labour movement criticised the strike by the Australian Federation of Air Pilots in 1991, but also were aghast about the precedent of the $6.5 million common law damages awarded that can cripple any union. Obviously unions who during strikes use forms of violence or adversely impact on public health are not to be protected.

WorkChoices abolished the limited statutory immunity that existed outside of officially protected action that allowed the Australian Industrial Relations Commission (AIRC) to settle disputes within 72 hours before an employer could obtain a common law injunction to stop a strike.

The abolition of the historical anomaly of the master’s common law weapon against strikes would seem an obvious step for the new Labor government to take.

Protection is also necessary against the statutory restrictions on the right to strike. WorkChoices contained many detailed legal avenues for employers to declare legitimate industrial action ‘unlawful’, such that, in practice, strike action was almost impossible without risk of injunctions, orders and fines.

Process requirements

Howard’s Workplace Relations Act contained strict process requirements for protected action. Strike action was illegal without technical compliance by unions.

Initially, the AIRC interpreted the requirement for employers to be given written notice of ‘at least three working days’ of the intention to take ‘the’ action, together with ‘the nature of the industrial action’, as straightforward. Yet counsel for employers successfully pursued legal technicalities over individual words in the Federal Court, eliciting opinions that narrowed the meaning of ‘the’ industrial action and ‘the nature’.

The compulsory ballot rules also gave employers more scope for raising technical points to frustrate industrial action.

In designing the new law to replace WorkChoices, the drafting of a fair process for industrial action will be critical. WorkChoices is excessively legalistic.

The juridification of industrial relations — which privileges corporate legal firms — has been cemented. In the FairWork Australia reforms, lawyers should be prised away from collective bargaining. Good industrial relations practice should encourage bargaining that values fair play, merit arguments and equity, not legal formalism.

Historically, support for the right to lawfully withdraw labour without incurring penalties has been strong.

Today, employees surely warrant their individual dignity and deserve to be treated fairly. No one should be at risk of being dismissed or abused for participating in legitimate industrial action.

The ‘protected industrial action/unprotected industrial action’ regime

One way to view industrial action and the legal response is along a spectrum from repression to rights. At one end of the spectrum, strikes are suppressed with no protection (as in the 19th century, police states, WorkChoices and the Building and Construction Improvement Act). Toward the centre, strikes may not be protected but are tolerated (as in Australia for most of the 20th century). At the other end of the spectrum, there is a legal right to strike.

Historically, much industrial action in Australia has provoked various degrees of repressive tolerance and legitimate industrial action was settled, if necessary, by arbitration.

In the 1960s unions campaigned against the then penal powers, culminating in spontaneous mass strikes in 1969 over the jailing of the union leader, Clarrie O’Shea, which rendered the penal clauses ‘dead letters.’[xii]

The former government’s workplace relations regime re-determined the boundaries on strikes. A feature of this bargaining structure was a dichotomy imposed on workers and their unions; namely, enterprise-based industrial action was ‘protected’ but other industrial action was ‘not protected’. The latter was consequently liable to be found unlawful and subject to penalties.

Over the 11 years of the Howard government, the scope of the protected action narrowed, while the scope to make action ‘not protected’ widened.

The ‘protected/unprotected’ divide shifted against the interests of workers. Section 127 of the Workplace Relations Act became the employers’ penal weapon of choice to stop a strike.

Initially, the AIRC had discretion to recognise that strike action was legitimate on its merits and to resolve a dispute without issuing an order for the workers to cease. Under WorkChoices, this discretion was removed, compelling the AIRC to make the order to cease action and allowing the Federal Court to impose fines.

The ILO has said that Australia’s ‘protected/not protected’ regime was in breach of international jurisprudence to protect the right to strike.

While the right for workers to take lawful action narrowed severely under WorkChoices, the scope for all other industrial action was widened and such strikes illegal.

The processes for taking protected action under WorkChoices are among the most prescriptive in the OECD, including as it does ‘prohibited content’ to outlaw normal union claims.[xiii] Effectively, state authorities police anti-unionism.

Judges have accepted legal technicalities and narrow legal formalism, while ignoring industrial fair play for workers by increasing the risk in exercising what is by international standards a democratic freedom.

With the end of the Howard era, the collective bargaining system that we take into the 21st century should be based on secure rights for workers, including firewalling the right to strike.

The disappointment is that the new Labor government may retain the current imbalance. Such ‘repressive tolerance’ will disadvantage working families facing the substantially increased power of corporations in the increasingly globalised economy.

your rights at work worth voting for

your rights at work worth voting for

To really go Forward with Fairness, Australia needs a regime where the right to strike is a last resort available to defend and advance their occupational, social and economic interests, and is recognised as a democratic right for workers and their unions.

Repeal Current restrictions

FairWork Australia has to end the strike repression. So far the Rudd Labor government is too close to corporate interests in maintaining the following unfair limitations.

1. The workplace relations minister has unprecedented unilateral power to terminate a bargaining period to halt a strike if in the minister’s opinion it may be likely to cause significant damage to an important part of the Australian economy. In such cases, an independent tribunal should decide on the merits, not an individual politician.

2. WorkChoices outlawed industry or pattern bargaining strikes. But ACCIRT research shows ‘there is no sector in the Australian labour market or bargaining system in the OECD which fits the fictitious model of ‘genuine’ enterprise bargaining – all bargaining systems contain elements of pattern-setting and workplace bargaining.’[xiv] The ILO had previously criticised Australia for moving down this path, stating that:

‘Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike (ILO 1998: 312).

The ILO found in relation to multi-employer agreements that:

…by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests (ILO 1999:205).

The recent strike by the Writers’ Guild in the United States, where workers are free to undertake an industry strike if necessary, would not have been lawful under the Rudd labor government, the writers would have been ordered back to write by a judge and the Hollywood corporations would have sued the Guild.

Workers should not be denied the freedom to choose to engage in industry or pattern as well as enterprise bargaining.

Pattern or industry bargaining has existed since the beginnings of unionism and has been widely accepted as pragmatic by industrial institutions for lifting industry-wide working conditions and for increased productivity. For national unions to be effective, workers have to combine collectively with other workers for common industry interests.

3. In 2005, the ILO found the Building Construction Improvement Act and the Australian Building and Construction Commission to be in breach of international standards and on the merits of the argument they should be abolished before 2010.[xv]

4. Maintaining compulsory secret ballots for all protected action is untenable.

Ballots are reasonable when they comply with the principles of freedom of association and are practicable, but not when they allow employers to take legal technicalities to frustrate the ballot and deny protected action. [xvi]

5.

The ‘legal fundamentalism’ in WorkChoices in outlawing all strike action during the term of a collective agreement is most unfair.

At the least, trade unions argue for a return to the position of the Federal Court in Emwest, which held that unions are not always prohibited from taking protected action during an agreement’s life if the new claims are not in the agreement.[xvii] This has wider ramifications by prohibiting political protest stoppages and green bans etc, which have made substantial contributions to the Australian way of life and the nation’s international reputation. ‘Legal absolutism’ should be rejected.

6. The ‘no right to strike’ outside of enterprise bargaining periods is ‘fundamentalism’.

Disputes can flare up in response to management prerogative during the term of agreements that cannot be solved by discussion and negotiation.

The total prohibition represses the capacity of workers to respond to unfair management.

In certain circumstances, industrial action is the only recourse workers have to respond to the harsh exercise of power at work. ILO standards should be met.

7. Under WorkChoices, preventing strike pay became an obsession. It was made an offence for an employer to pay for time lost for a strike, which was always apportioned as four hours. Workers who returned to work 15 minutes late after they had collected some money on the job for the family of a worker who had been killed were docked four hours pay. In another instance, the Howard government supported the docking of a full week’s pay due to a ban that was only placed on overtime to support a collective agreement.

It is generally accepted that workers should not be paid for lost time, but what about cases where strikes are deliberately provoked by management? Disputes over pay where strikes are involved are best handled by the AIRC on their merits.

There are so many unfair strikes restrictions in WorkChoices that a further (but not exhaustive) list of the areas where there is a good case for repeal would include: the extreme anti-union ‘prohibited content’ restrictions; the impractical rule that a strike is not protected if non-unionists are involved or is undertaken in concert with unions that are not engaged in protected action;

the employer’s right to lock-out (Australia is the only OECD nation to legally discriminate in favour of employer lock-outs and against strikes)[xviii]; the absence of a right to strike during individual bargaining under common law agreements (WorkChoices repealed the AWA individual bargaining right); the capacity of employers to make ‘agreements’ with themselves under ‘Greenfield employer agreements’ where there is no right to strike;

the AIRC’s ability to suspend bargaining periods to stop protected action (for example, in cases of pattern bargaining; where third parties allege they are harmed; after the suspension of a protected action ballot; for ‘cooling off’, etc); strikes that offend anti-competitive trade practices law; solidarity and sympathy strikes; all of the limitations on lawful OHS industrial action.

Repeal ‘matters pertaining’

Turning to one detail of what should not be part of the new industrial relations law, there should be no reversion to limiting protected action to ‘matters pertaining to the employment relationship’. Otherwise, the 2004 High Court Electrolux law will apply which, in practice, was very unfair as it made organising protected action very risky.[xix] This is because the High Court viewed protected action as only applying to claims that were legally about ‘matters pertaining to the employment relationship’.

The legality of what ‘pertains’ is complex and technical, with differing AIRC and judicial opinions. Predicting what strikes are ‘protected’ is uncertain.

The Full Federal Court argued for a pragmatic response where enterprise bargaining claims backed with protected industrial action required a high degree of certainty.

Unfortunately, the High Court held to a ‘black-letter law’ interpretation, disregarding realistic industrial relations outcomes. Industrial action thus became protected, or not, only when a Court ruled as such, not because the union genuinely believed the claim to be lawful.

In the Electrolux case, the claim for a bargaining agent fee was seen as not ‘pertaining’ and was therefore not protected and unlawful.

In dissent, Kirby J said that the capacity of the parties to freely negotiate was the purpose of the 1996 enterprise bargaining regime, noting that protected action by unions was not subject to common law liability. He called for legal realism, since it would be

‘odd in the extreme’ if one clause later found technically not to be ’pertaining to the employment relationship’ and to be unlawful, would invalidate the whole agreement and withdraw the protection. A technical legal matter that may take years, as in this case, to resolve through the courts should not remove the immunity for industrial action.

To allow, Kirby continued,

a grave, even crippling, civil liability for industrial action, determined years later to have been unprotected, is to introduce a serious chilling effect into the negotiations that such organisations can undertake on behalf of their members. It would be a chilling effect inimical to the process of collective bargaining.

WorkChoices compounded the peril, adding ‘matters pertaining’ to ‘prohibited content’ to overrule AIRC decisions. Parties are still uncertain about what ‘matters pertaining’ are and therefore uncertain about the legal status of future industrial action. As the Federal Court said:

If the parties are to make rational and confident decisions about the courses of conduct, they need to know where they stand. It would be inimical to the intended operation of the WR Act (1996) to interpret it in such a way as to make the question whether particular industrial action is ‘protected action’, and therefore immune from legal liability, depend upon a conclusion concerning a technical matter of law … As this case demonstrates, that may be a matter about which well informed people have different views.[xx]

Industrial relations practitioners do not want to revert to confusion with corporate lawyers arguing that claims are deemed not capable of being agreed because they ‘did not pertain’.

Collective bargaining must come with the freedom to determine claims, and to bargain with the right, if necessary, to strike.

Finally, ‘matters pertaining’ is a judicial device arising out of master and servant status law centuries ago. Judges assigned legal rights by status, not workplace reality or social justice. The master’s status carried the assigned right of total dominance while the servant was assigned the status of total obedience. Any hint of conflict, let alone the withdrawing of labour, was automatically severely punished. Over many years, this status doctrine was imported into capitalism’s ’freedom of contract’ law. Today, this status reasoning is still applied by the device of ‘matters pertaining‘, converted to the status of the employer and employee.

To any reasonable person, a union bargaining fee would pertain to the employment relationship. Here, the bargaining agent fee was held to be ‘not pertaining’ to employment. Unless centuries of fictional legal doctrine are to be allowed to restrict industrial action, judges must be relieved of using the status device to declare that white is black.

The human right to strike

Turning to more general principles, the right to strike must be classed as a human right unless labour is to be reduced to a mere commodity. As the law stands, workers are abused as human beings and citizens by the suppression of their freedom to withdraw labour.

The issue goes to justifiable positions that are strongly held, expressed as the ‘dignity of labour’, ‘controlling our labour power’, ‘not forced labour’, and workers are ‘free and not slaves’. Although Australians assert that the right to strike is a human right, this is not recognised as a legal right in this country as it is in the laws governing European Human Rights.

Elsewhere, countries enact labour laws based on the conceptions of human rights upheld by the United Nations and the ILO, which the Howard government refused to follow.

Keith Ewing has joined human rights law to international labour law.

In these terms, the right to strike, conceptualised as a human right, is inalienable in that it cannot be abrogated by the state or by individuals.

Further, human rights are indivisible, often unequivocal and their exercise must be supported by the state.

Although an individual human right, individuals organising collectively remain fully protected regardless of exercising the right to strike in combination. In these terms, no strike is a breach of the individual’s contract.

As an effective human right, union organisers and the organisation are protected from torts law.

Solidarity or sympathy strikes are protected. The right to strike overrides competition law. As a human right, the right to strike responds to attacks on workers’ industrial rights and promotes other human rights.

If the right to strike is a human right workers must be free to determine the causes they will promote by using it, just in the same way that we do not censor the purposes that may be promoted by the exercise of the right to freedom of assembly. People are free to exercise their human right to peacefully assembly by marching through the streets to demonstrate their opposition to the invasion of another country or anti trade union legislation. Why should they not also be free to exercise their human right to strike to promote the same ends by staying at home, or in order to reinforce the protest? It is not for the State to determine the causes which may be promoted in this way.[xxi]

The democratic right to strike

Democracy is also a basis of the right to strike. Collective bargaining requires the strike as an economic weapon, an industrial sanction, and as a means of enforcing a right or a demand for an improved employment right.

But what about the right to strike outside this context? When we widen the application of the principles beyond employment, we afford firewall protection for legitimate strikes such as for political protests, environmental action, etc.

Here, the right to strike is justified on principles of democratic rights, civil liberties, freedom of speech and conscience.

strike as a last resort

strike as a last resort

What would the right to strike look like?

A firewall right to strike would have many features. Firstly, freedom of association is paramount. There must be legal guarantees for unions to be recognised in collective bargaining. Industrial action that was democratically decided for collective agreements must be fully protected. Workers and unions must be free to collectively bargain with the right to strike as an ultimate step to support their claims.

The scope would not only include wages and conditions but also management decisions, industry development decisions and so on.

There would be no sanctions for strikes in the course of collective bargaining that protect and advance the occupational, social and economic interests of workers.

Industrial action for industry and/or pattern bargaining would be lawful, as the industrial parties would have the freedom to determine the level on which they bargain. There are many arguments that suggest productivity would be enhanced. ILO standards for the protection of the right to strike would apply.

The individual worker would be protected under all circumstances: there must be no dismissal or victimisation; no loss of social security.


The right to strike on occupational health and safety must be unconditional. The
right to strike would not be restricted in specific industry settings: no form of the ABCC could exist; restrictions in trade-related industries, such as the waterfront, would go; in ‘essential services’ the right to strike would be restored.

The common law doctrines would not play any part in strike-breaking. Workers and the union officials organising strikes would have complete legal protection against common law actions in tort, contract and in equity. Intractable industrial disputes would be settled in the AIRC, not the common law courts.

Reversing prior legal decisions, picketing would be a protected industrial action not subject to common law interim injunctions. An employer would not be able to employ ‘replacement’ labour to break a strike. The ILO policy is that the hiring of workers to break a legitimate strike is a serious violation of freedom of association.

Freedom of association provisions would, as reasonably understood, mean the positive right ‘to associate’, superseding the ‘right (?) not to associate’ that has been used in right-wing ideology as an anti-union device.

Competition law that outlaws solidarity strikes and so-called ‘secondary boycotts’ would be removed by the repeal of the Trade Practices Act (1975) section 45D.[xxii]

‘Green bans’ backed by democratic community assemblies to save the environment and the right to strike over global warming would be protected.[xxiii] The right to politically protest by withdrawing labour would be lawful.[xxiv] This responds to public policy. As citizens in a democracy, workers would have legal protection for political protest strikes, as in cases such as the defence of the right to attend ACTU rallies against WorkChoices and on any other social and economic issues affecting workers.

It is of concern that a Labor government may deny such a right in breach of ILO standards.

For ‘political’ protests, such as attending ‘No War’ rallies, demonstrating over foreign affairs issues such as the conflict in East Timor, a democratic right would exist. Workers would determine the scope for political communication.

The ILO supports the right to have political protest strikes. Such protection would fall short of ‘purely political’ strikes to, say, bring down a government (but not necessarily in all cases). The state retains its monopoly on force to defeat strikes.

The AIRC’s power to stop strikes would not be available. Fines would rarely be used, as the principle of restorative justice applies in most instances. At the least, fines would be a minimum.

The limited exceptions on the removal of the restrictions on ‘essential services’ would meet ILO standards.

The provisions in the Crimes Act that make certain strikers criminal would be repealed, as would be the provisions in anti-terror laws.

The coverage of the lawful strike would be international, as unions organise on a global scale to respond to the corporate organising.[xxv] Australia’s collective bargaining system would allow the right to strike across countries based on ILO policy. In Europe, rights for workers already extend across countries based on the European Protection for the right to strike.

The new law could simply protect industrial action, so that ‘no action lies under any law (whether written or unwritten) in force in the Commonwealth, or any State or Territory in respect of any industrial action that is protected action unless the industrial action is involved with intent to harm public health and safety.’

Conservatives argue that it is good public policy to repress strikes. In reply, it is not often that a Republican president of the United States can be cited, in this case Eisenhower: ‘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.’[xxvi] In 1970, Clyde Cameron (the Labour Minister under Whitlam) commented:

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.

Malcolm Walters found that, paradoxically, a factor in constructing limitations on strikes is the belief that they can be eliminated.[xxvii] History shows that under repressive anti-strike regimes, workers will still struggle to defend their interests.

Are we slaves, or are we to be free from the dictates of employers and the state?

In the past, unions organised strikes knowing penal powers were rarely used. It is the opposite these days. Unions settle and legal action is withdrawn. But unionists in the future should not have to organise under penal sanctions.

With the promise of legal industrial action, agreement may be made without strike dislocation and with fair play. Industrial relations bargaining would be on a more balanced playing field.

The right to strike and its industrial relations practice is important for fair play and downward pressure on strikes.

The ‘Your Rights at Work’ campaign must therefore continue.

Surely Australians want labour laws to be what they are supposed to be; namely, framed in the interests of working families.

Notes


[i] White C (2005) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No 56, 66. www.jape.org; White C (2006) ‘The right to strike removed’ Dissent No. 21 Spring 2006.

[ii] To ‘firewall’ the right to strike for an individual, for workers collectively and their union is to make an impenetrable legal barrier, a modern image more secure than a ‘shield’ protection. No corporate lawyer or judge can make an unauthorised entry through the firewall to penalise workers withdrawing their labour power. All industrial action has to be firewalled for a fair and effective right to strike.

[iii] CFMEU (2008) ‘The Star Chamber alive and well in Australia – an arcane overhang from the Howard Government’ www.cfmeu.asn.au/construction. White C (2006) ‘Provoking Building and Construction Workers’ 20th AIRAANZ http://www.aomevents.com/conferences/AIRAANZ/papers.php. White C (2006) ‘The Perth 107 Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au; White C (2007) ‘Constructing Fear: Australia’s Secret Industrial Inquisition’ (www.constructingfear.com.au)http://bushtelegraph.wordpress.com/2007/08/29/%e2%80%98constructing-fearaustralia%e2%80%99s-secret-industrial-inquisition%e2%80%99/

Ross L (2005) ‘Building Unions and Government ‘Reform’: The Challenge for Unions’ Journal of Australian Political Economy No 56, 172; Roberts T (2005) ‘Into the Industrial Dark Ages: the civil liberties implications of the Federal Government’s Industrial Laws for the Australian Construction Industry’ Civil Liberty, Journal of the NSW Council for Civil Liberties.

[iv] Kevin Rudd 2005 attacked in Parliament the WorkChoices Bill (citing my ILO right to strike paper) http://parlinofoweb.aph.gov.au and his AWU Sydney speech ‘John Howard’s Radical Industrial Relations Regime and its Incompatibility with ILO Standards’ 25/11/2005. White C (2005) ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html. The Greens support ILO minimums.

[v] Novitz T (2003) International and European Protection of the Right to Strike A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union (Oxford University Press). She concludes p 368: ‘…there remains scope for the endorsement of ILO principles, based on an appreciation of the right to strike as a civil, political, and socio-economic entitlement.’ For Australia: International Centre for Trade Union Rights ICTUR (1999, 2002-2007) Senate Submissions into WR Act and WorkChoices submission no. 185. http://parlinofoweb.aph.gov.au

[vi] ILO (1983: para 200) Also: 1998, 1999 – 2003 Reports of the Committee of Experts on the Application of Conventions and Recommendations ILO Geneva www.ilo.org

[vii] I responded to Kevin Rudd’s unilaterally decided anti-strike positions against ILO standards during the election campaign. He sought to appease the employers’ powerful lobby. White C (2007) ‘Criticism of Rudd’s limitations on the Right to Strike’ www.aeufederal.org.au/E07/election White C (2007) ‘What limits the right to strike?’ Blog: Larvatus Prodeo http://larvatusprodeo.net/2007/05/21/guest-post-by-chris-white-what-limits-the-right-to-strike/

[viii] ACTU (2004-8) www.actu.org.au for submissions. www.rightsatwork.com.au; Peetz D (2005) Senate submission WorkChoices 151 Industrial Relations and Labour Law Academics No 175. http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/submissions/sublist

Creighton B and Stewart A (2005) Labour Law 4th edition. (Federation Press, Sydney); McCrystal S ‘Shifting the balance of power in collective bargaining: Australian law, industrial action and Work Choices’, The Economic and Labour Relations Review, 16(2), May 2006, p. 210; McCrystal S ‘Smothering the right to strike: Work Choices and industrial action’, 19 (2006) Australian Journal of Labour Law, p. 201; Romeyn J (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ Parliamentary Library research http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=PRSPUB&ID=2789;

White C (2005) ‘Howard makes the ‘blue’ unlawful. The right to strike is down the WC’, 2/11/2005, http://evatt.labor.net.au/news/358.html;

[ix] Bromberg M and Irving M (2007) Australian Charter of Employment Rights (Hardie Grant) Chapter 9 McCallum R, Chin D and Gooly A ‘Fairness and balance in industrial bargaining’

(p 97-100) The Australian Institute of Employment Rights www.ier.org.au

[x] Munro P (2007) ‘Statement of employment rights: the rights of workers with an efficient and fair industrial relations system. Preliminary draft’ New Matilda www.newmatilda.com

[xi] Australian Chamber of Commerce and Industry ACCI (2002) The Right to Strike Review no 89, http://www.acci.asn.au/ Senate WorkChoices submission 2005 number no. 153 http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/index.htm The ACCI supports the right to strike ‘in principle’ but with limitations, similar to the limitations of the Rudd Labor government.

[xii] Creighton B and Stewart A (2005); Hutson J (1983) Penal Colony to Penal Powers (Sydney: AMFSU.) For the 1990’s debate, Green R (1990) ‘The Right to Strike: Options for New Industrial Legislation.’ Evatt Foundation pamphlet, Sydney. See on strikes, Hyman R (1972) Strikes Fontana London; Kelly J (1998) Rethinking Industrial Relations Mobilization, Collectivism and Long Waves (Rouledge, London).

[xiii] White, C. (2007) ‘Howard’s Prohibited Content on strikes’ http://solidarity.redrag.net/2007/05/03/prohibited-content/

[xiv] ACIRRT (2002) Adam Report No. 35 ‘Pattern bargaining – taking a closer look’ Australian Centre for Industrial Relations Research and Training, Sydney University, www.acirrt.com This ban on industry/pattern bargaining is fundamentalist.

[xv] ILO (2005) Council Report from the Freedom of Association Committee http://www.ilo.org/public/english/standards/relm/gb/docs/gb294/pdf/gb-7-1.pdf paragraphs 409-457

[xvi] Novitz op cit.; Romeyn op cit.; Alex Bukarica, ‘Secret ballot: applications under the Workplace Relations Act’, Law Society Journal, February 2007, pp.75-76.

[xvii] Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union (2002) FCA, p. 61.

[xviii] Briggs C (2004) ‘The Return of the Lockout in Australia. A Profile of Lockouts Since the Decentralisation of Bargaining’ AIRAANZ 2004 Conference, Griffith. Briggs C (2005) ‘Secret ballot or secret war. Proposed laws on strikes and lockouts tip the playing field further against employees’ Australian Policy On-line www.apo.org.au

[xix] High Court. Electrolux Home Products Pty Ltd v AWU (2004) 78 ALJR 1231.

[xx] Federal Court. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Ltd (2001) FCA 1600.

[xxi] Ewing K (2004) ‘Laws Against Strikes Revisited’ in Barnard C, Deakin S and Morris G editors The Future of Labour Law (Hart Publishing, Oxford, 2004)

[xxii] Creighton and Stewart, op cit., pp. 577-582; section 45D was repeatedly criticised by the ILO as it prohibited activity which ought to be lawful in terms of Convention 87.

[xxiii] White C (2007) ‘The Right to Strike to Save the Environment’ www.aeufederal.org.au/E07/election.html Mallory G (2005) Unchartered Waters Social Responsibility in Australian Trade Unions Published Mallory.

[xxiv] White C (2005) ‘The right to politically strike? The case for re-evaluation’. Evatt Foundation 13/4/2005 http://evatt.labor.net.au/publications/papers/139.html

White, C. (2005) ‘The Right to Politically Strike?’ AIRAANZ 2005 Conference Sydney University http://airaanz.econ.usyd.edu.au/papers.html

[xxv] Crosby M (2005) Power at Work Rebuilding the Australian Union Movement (Federation Press, Sydney).

[xxvi] Cited by Cameron C (1970) ‘Industrial protest: the Right to Strike’ University of Adelaide, WEA ‘Social order and the right to dissent” 27/11/1970. (Australian Parliamentary Library).

[xxvii] Waters M (1982) Strikes in Australia A sociological analysis of industrial conflict (Allen & Unwin, Sydney).

Further references from Chris White Labour Law Researcher Canberra

whitecd@velocitynet.com.au

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