The Fair Work Bill is not a fair collective bargaining system when the repressive WorkChoices restrictions on the right to strike remain.
Repression of the right to strike remains
If ever the accusation is true that the FWB is ‘Workchoices lite’ it is in the regime repressing industrial action.
The COIL process was watertight in Canberra with no leaks. But after the FWB was public, a senior member confirmed the DPM’s ‘clear rules for industrial action’ were a ‘cut and paste’ from WorkChoices, as instructed. Retaining the WorkChoices (almost) denial of the right to strike is not a fair collective bargaining system.
The FWB should be amended to repeal the WorkChoices sections unfairly limiting the right for protected industrial action and making so-called unprotected action unlawful.
I add that this is in an era of the lowest strikes on record.
So why the repression and why not an effective right that would put downward pressure on strikes?
I asked some HRM who use their lawyers to challenge strikes their reaction to FWB. They were pleased WorkChoices was retained. They expected Labor rewriting.
Nearly all of the employer legal opportunities to challenge unions’ ability to take protected action and then the many ways to stop such lawful industrial action remain. The restriction that protected action is unlawful if inadvertently a non-unionist is involved has been repealed, meaning one practical barrier is removed.
I have published on the right to strike. My criticisms of the Howard government’s policies on this critical last resort means for workers to be effective in the relations of power between capital and labour remains with the Rudd government’s FWB. I request Senators to examine the arguments in:
Chris White ‘The right to strike’ in Sheil, C (ed) ‘The State of Industrial Relations’ Evatt papers, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.
My arguments are more pressing with the GFC for ‘firewalling’ the right to strike. In a recession employers attempt to cut wages and conditions. So workers and their unions need to be able to resist and to have legal protection against corporate lawyers getting orders for industrial action to cease.
Workers under the FWB still run considerable risks to be dismissed or their unions fined for the last resort withdrawal of their labour power. For a fair and effective collective bargaining system, there must be the lawful strike.
When the WorkChoices Bill 2005 passed, the Journal of Australian Political Economy No 56, 66 published a chapter: White, C. (2005) ‘WorkChoices: Removing the Choice to Strike’. www.jape.org. My criticisms apply to the FWB.
Indeed, my 2005 Senate Submission ‘Not much choice if the right to strike goes’. on the WorkChoices Bill still (almost) applies to the FWB, No. 129 www.aph.gov
Parliamentary report
I cite the analysis from the Parliamentary Library, J Romeyn’s (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=PRSPUB&ID=2789.
Her Executive summary is:
• Since the introduction in Australia of the concept of ‘protected’ industrial action by the Keating Government in 1993, successive waves of reform by the Howard Government in 1996 and 2005 severely constrained the right to take industrial action. They did this by limiting the scope for protected action, imposing difficult procedural requirements on its access and ensuring that all unprotected action is regarded as unlawful and subject to an array of remedies.
• The ILO and a number of Australian academic and other commentators have criticised the Work Choices reforms for tipping the balance of power too far towards employer interests—undermining the important role of the right to strike as a fundamental element of stable collective bargaining.
• despite suggestions that further reform of the right to strike will be limited, this paper argues that a thorough review of relevant legislative provisions is required. It suggests that if such a review is undertaken it must give prime consideration to: the requirements of stable and voluntary collective bargaining; the need to strike a fair balance between the interests of workers, employers and the public; and the need to avoid unnecessary regulatory burden and complexity with its associated costs for organisations and the community. Consideration should also be given to Australia’s obligations under international conventions and the guidance provided by the principles and decisions of the ILO’s supervisory bodies.
• The paper notes concerns that any reduction of constraints on industrial action will see an ‘explosion’ of such action, but suggests that these concerns require critical consideration in light of the range of economic, social, cultural and structural changes which have seen industrial action fall to historically low levels.’
She further points out:
‘Strikes and other forms of industrial action represent the further expression of collective voice by employees and may help to balance their bargaining power vis a vis the employer. Indeed, strike action has been recognised as playing such an indispensable role in resolving deadlocks in collective bargaining relationships as to be regarded as an essential ingredient of free collective bargaining.
Paul Weiler ‘Reconcilable differences: New directions in Canadian labour law’, Carswell, 1980, p. 66.) explains:… the stoppage of work affects both sides, inflicting harm and putting pressure not only on the employer, but also on the union as a lever towards settlement. Even more important, it is the prospect of impending strike action (especially if the parties have previously had real life experience of it) which is a powerful prod to agreement as negotiations reach the critical point …
The ability to compromise simply would not be there unless the parties were both striving mightily to avoid the harmful consequences of a failure to settle. In the larger system it is the credible threat of the strike to both sides, even more than its actual occurrence, which plays the major role in our system of collective bargaining. For these reasons, Weiler suggests that banning strikes would effectively end collective bargaining.
Similarly, Jacobs agues that in the absence of a right to strike ‘collective bargaining would amount to collective begging’. A. Jacobs cited in T. Novitz, International and European protection of the right to strike, Oxford University Press, Oxford, 2003, p. 50.’
The arguments in her paper were rejected by the government and ought not be. The pendulum of ‘balance’ under the FWB has barely moved at all towards reform for the rights of employees to withdraw their labour.
Even when a union goes through the challenges to win a secret ballot and commences protected action, it can be stopped by many means.
One example is if a third party is harmed, that by definition is likely to be the case as some business may be affected or e.g. students with teacher unions (as used recently by the NT ALP government). The point is that there is no right to strike with such provisions.
Outrageously, the DPM keeps a Ministerial power to stop strikes…not even going to a court, but determined politically!
And unprotected action has to be automatically ordered to cease by FWA, not even having the discretion as under the notorious s127 of the 1996 Act.
The flaw is the ‘protected industrial action/unprotected industrial action’ dichotomy
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 (the 19th century, police states, WorkChoices and the Building and Construction Act).
Toward the centre, strikes may not be protected but are tolerated and/or repressed (arbitration system).
At the other end of the spectrum, a legal right to strike, a limited form in 1993 under Keating.
Historically, industrial action provoked varying degrees of repressive tolerance.
Legitimate industrial action was settled, if necessary, by arbitration. When penal powers in the 1960s were used unions campaigned against them, culminating in mass strikes in 1969 over the jailing of the union leader, Clarrie O’Shea, which rendered the penal clauses ‘dead letters.’
The Howard government’s 1996 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. This regime remains under the FWB.
The ILO held this ‘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 illegal industrial action widened.
The processes for taking protected action under WorkChoices are among the most prescriptive in the OECD. Effectively, the AIRC and soon FWA and the courts police strike-breaking rather than solving the grievances.
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.
However, the FWB continues the protected/unprotected action regime and should be reconfigured.
It is fundamentalist to make all industrial action outside of protected action unlawful.
To give but one example, that of effectively resolving disputes that arise during the life of the agreement (which may be 4 years). Normally when industrial peace is wanted during the life of an agreement, access to arbitration in respect to interest based disputes was essential.
This FWB requires employees to deliver industrial peace, without imposing the countervailing obligation on employers to submit to binding arbitration. Without a mechanism for resolving disputes, employees may be forced to take unprotected action to pursue legitimate grievances against harsh and unfair decisions by management.
ILO minimums breached…again
I argue that the FWB like WorkChoices breaches minimum ILO standards:
‘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.’ ILO 1983
This was supported by ALP governments and ALP MPs. Kevin Rudd in 2005 made this point (http://parlinofoweb.aph.gov.au) criticising the WorkChoices Bill (citing my 2005 paper ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html. and
in his AWU Sydney speech ‘John Howard’s Radical Industrial Relations Regime and its Incompatibility with ILO Standards’ 25/11/2005. But not so for the FWB!
See 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 see the 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 ILO 1983, 1998, 1999 – 2003 Reports of the ILO Committee of Experts on the Application of Conventions and Recommendations ILO www.ilo.org
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