Right to strike for industry bargaining attacked by Gillard (January 5th 2008)

It is important that workers have the right to strike for industry bargaining.

January 2008. One week’s new year holiday on the NSW south coast beach, listening to the tests with PM Kevin Rudd commentating and reading Mungo’s election campaign book. As a campaigner for Your Rights at Work Worth Fighting For and ALP member, I am proud to see Ms Julia Gillard as Acting PM.

But on January 3 came her “industry strikes are unlawful” line over building industry bargaining claims. The TV trivialised her slipping over.

I researched “the right to strike” and attacked Howard’s unjust WorkChoices restrictions
(‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No 56, 66. 2005 www.jape.org)

Under WorkChoices, industry or pattern bargaining strikes were made unlawful.

What was really legitimate union practice – making claims on multiple employers in an industry backed with the means of industrial action – was made “unlawful”. No case was made for this restriction, other than backing employer industry lobbyists.

Ms Julia Gillard, Deputy Prime Minister, Minister for Education, Minister for Employment and Workplace Relations, and Minister for Social Inclusion said she would have “judges coming down like a tonne of bricks” on unionists in industry bargaining strikes. I was taken aback to hear her coming out against industry strikes with penalties no differently to any of Howard’s IR Ministers over the past 11 years.

She made no mention of throwing WorkChoices in the bin – just the all too familiar emphatic response of state repression to stop strikes.

Her “spin” is worrying. It sounds like Howard’s hysterical “fear of strikes” election TV ads. Brendan Nelson got the chance to use fear about strikes hurting the economy!

The industrial relations reality is that strikes are so low historically they are not an industrial relations nor public problem with no impact on the economy.

Although it is in the early days of the Labor Government with many refreshing changes, one danger is Labor’s “me-tooing” Howard’s right wing ideology.

I argue that retaining WorkChoices suppression of the right to strike is the problem.

Ms Gillard attacked the Construction division of the CFMEU for industry bargaining. The CFMEU was the first target of Howard’s unfair outlawing of union industrial action in the extreme Building and Construction Industry Act. For example, individual workers were fined $10,000 for striking in protest against the unfair dismissal of their shop steward in Perth. (See “The Perth 107 Right to Strike Contest” the Australian Institute of Employment Rights 2006 www.aierights.com.au). I thought support for building workers would be warranted under a Labor government.

But any union is to be penalised in 2008 industry bargaining that uses industrial action for economic pressure, as a last resort, in negotiating new employment agreements.

Your Rights at Work union activists enter 2008 collective bargaining with the WorkChoices ban on industry strikes still to be legally enforced.

Even the United States does not prohibit legal industrial action on a multi-employer basis or in support of common claims in industry bargaining. There was no state suppression of the Writers Guild industry strike with the Hollywood industry.

Right to strike agreed in principle

As part of a public debate, I argue it is not principled to make industry strikes unlawful.

First, everyone upholds the principle of the right to strike as a human right.

It is socially accepted by employers and unions that for workers to have some chance at responding to the bargaining power of corporations, governments, and management that the legal ability to withdraw labour is essential. Without this balance, there is no effective workers’ collective bargaining.

With Keating’s 1993 IR reforms, employers and unions agreed on “protected action” in enterprise bargaining. Industrial action is protected against statutory sanctions and against ancient common law doctrines enforced by judges decreeing strikes are civil wrongs, torts and unlawful, and unions liable for damages.

Labour law has to have priority for effective freedom of association for workers to be able to collectively bargain. Workers organising democratically in ways determined by them is a basic IR freedom.

Howard’s ads agreed: “We won’t remove the right to strike.” But only in principle, as WorkChoices has hundreds of legal restrictions on the exercise of the right to strike.

In the 21st century, the right to strike is one of the civil and political rights, a means for workers’ freedom of association.

A modern collective bargaining system is to ensure the right to strike in whatever form freely and democratically determined by workers.

Workers and their unions ought to be able to democratically determine their economic and social interests are advanced strategically on an industry basis or with pattern bargaining.

No one is opposed to enterprise bargaining as the main form. But Howard (and now Rudd) adopted an absolute, “zero tolerance” stance of only a right to strike at a single workplace – absolute in the sense of any industrial action outside of the enterprise bargaining period being declared “unlawful, with court sanctions.

I argue that it is not justifiable that unions organising industry bargaining action are to be stopped with legal injunctions and fined and workers subject to dismissal. This is reverting to outdated state repression of collective bargaining.

The main employer HRM response is to solve workplace grievances at whatever level through negotiation and not to use lawyers to apply for penalties.

Ability to choose

Why should labour law deny industry bargaining when both industrial parties agree? Common minimum wages and conditions are wanted in many industries, with still room for productivity and innovation in the enterprise. For a hundred years employers preferred such a system, but with conciliation and arbitration in reserve.

Rather than the current absolutism, the industrial relations partners should choose industry agreements to suit their interests, as well as worksite agreements.

Industry bargaining would only be in a minority of industries, so why be so absolute to deny preference now?

Level playing fields

Employers engage in industry bargaining with common claims with other employers in their industry. Many employers accept claims in enterprise bargaining that are the same as negotiated by another employer. Or more commonly within Reserve Bank national constraints of about 4%.

Employers support the reality of the “level playing field”.
Employers in labour intensive industries may want to maintain common employment conditions, in industry agreements. Employers do not want to be forced into competition on the price of labour, whether through forcing it down as low as possible with AWAs, or engaging in leapfrogging increases, either to attract and retain labour or in response to union claims.

Most small businesses have neither the skills nor the time, and want agreements that put the industry on more or less an equal footing in respect to labour costs. The core issues are determined in agreements with one or more employers, with other employers and their workers satisfied to then adopt these conditions. Unions will sometimes back these claims with industrial action.

Employer industry associations bring together employers for a common strategy to oppose union claims.

This is not inconsistent with enterprise bargaining. Even where common claims are accepted, they are often implemented differently as to timing, “offsets” and site-specific productivity. Industrial relations experience is industry bargaining agreements do mean productivity advances.

A combination of enterprise/industry bargaining in industrial relations practice has to be determined by the parties, without artificial legal restrictions imposed by the state.

Employers also recognise that the transaction costs in continuous enterprise bargaining is not worth the benefit, once substantial change has been achieved.

There is evidence that sustained international competitiveness requires the development of industry “clusters networks and regional innovation systems”. This is strongly supported by the OECD and researchers on “innovation and sustained competitiveness”.

In other words, innovation and productivity improvement at the enterprise level is necessary but not sufficient for sustained international competitiveness.

Thus employers and unions must reach agreements about change that goes beyond the enterprise level encompassing clusters, networks, industry sectors and sub-sectors, cities, regions, nationally and in the 21st century internationally.

The exclusive focus on the enterprise runs against the evidence and will not produce sustained competitiveness or deal with Australia’s balance of payments malaise.

Struggle against penal powers

What of our labour movement’s historical struggle against penal sanctions for strikes?

The ACTU and ALP and Green MPs argued the case against penal powers for sometime.
They attacked with conviction Howard’s outlawing of industry strikes, as they did with the many WorkChoices limitations.

152 IR and Labour Law academics in their Senate critique of the WorkChoices Bill opposed the outlawing of industry strikes.

The ALP promise was WorkChoices is to be abolished. Working families expect modern labour laws advancing civil and economic rights in a democracy, and with many other reforms, protection for the right to strike.

Kevin 05 backs the ILO

Neither in the USA, United Kingdom nor Europe is an industry bargaining strike unlawful. Under WorkChoices, Australia has the internationally low reputation of being the only OECD country whose labour laws makes industry strikes unlawful.

Respected International Labour Law jurists from the tri-partite International Labor Organisation (ILO) in 1999 criticised Howard’s 1996 Workplace Relations Act as breaching minimum workers’ rights for restricting the ability of workers and unions to bargain collectively on a multi-employer or industry-wide basis.

They held that they should have a right to determine the level of bargaining to promote and protect their economic and social interests. Where strike action is “unprotected” in support of multi-employer, industry-wide agreements, it is subject to a wide range of sanctions, and for all practical purposes prohibited.

The ACTU agreed Howard’s denial of protected action for industry or pattern bargaining was a blatant defiance of the ILO’s call for Australia to strengthen the right to strike.
Kevin Rudd in 2005, then as opposition Foreign Affairs spokesperson, in attacking the WorkChoices Bill in Parliament used ILO minimum standards.

No case for restricting Unions

Workers not only combine in their own workplace. Workers come together in unions to solve grievances they have in common in industries, and in the workforce as a whole. Our system of national multi-employer unions means for union members the ability to campaign across an industry and nationally and is of considerable benefit.

There is no case for criminalising workers using industrial action in a coordinated way on an industry basis.

All the major workplace gains of the last 20 years, including awards, parental leave, superannuation, redundancy pay, training and skill recognition and family leave, were initiated by industry campaigns which included industry action.

Occupational health and safety is also not satisfactorily solved at the enterprise level. Health and safety standards should not be available to be bargained away at the enterprise level. They are on industry-levels, as well as in the State’s OHS legislation.

Campaigning around common issues is integral to union functioning. Although industrial action does not always, or even usually accompany bargaining, without the ability to take action the process is unacceptably weighted towards the employer.

Need for debate

These issues are not publicly debated. Your Rights at Work activists were not involved in the 2007 Rudd decision to remove the right to strike for industry bargaining.

Unfortunately, employer interests are being supported against working families’ interests.

It is time for wiser ALP heads to prevail. PM Rudd and Deputy PM Gillard could well be advised to tone down their ‘spin’ and use their political talents to justify the industry right to strike. Industry wide industrial pressure can still end up with employers accepting productive multi-employer agreements, with enterprise deals as well.

I am only here debating the lawful ability to strike (and see my other concerns on ALP policy ‘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/

For those in the right wing camp, a debate on the right to strike means whipping up fear of widespread strikes. They, as always, refuse to see that in protecting the right to strike the opposite may occur, i.e. less strikes.

With a lawful strike available in industry bargaining, there is a greater reason to reach fair employment agreements. This is without the strike weapon, only the ability to do so, as a promise in bargaining, but not exercised.

The right to strike means downward pressure on strikes. HRM skills for negotiating prevail, without using judges to deny the human right to strike.

2008 ought to be when Australia rejects Howard’s 19th century IR system where withdrawing labour is illegal.

Chris White is a Labour Law writer living in Canberra. 5 January 2008.
Contact whitecd@velocitynet.com.au for more references.