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 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. The threat of the common law of torts means 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.’ (43-68).

Worker and union collective bargaining industrial action for collective agreements is fully protected. Workers and unions are free at law to collectively bargain with the right to strike not only on wages and conditions but also over management prerogative decisions, industry development decisions etc. There are no sanctions for collective bargaining strikes that protect and advance the occupational, social and economic interests of workers.

Peaceful picketing is protected industrial action and is not subject to common law injunctions.

• An employer cannot employ ‘replacement’ labour to break a strike, but is required to negotiate. The ILO policy is that the hiring of workers to break a legitimate strike is a serious violation of freedom of association.

The Fair Work Act 2009 still denies this ILO collective bargaining right at the industry level or in pattern bargaining. DPM Gillard has sternly maintained her stance against pattern bargaining and industry industrial action.

In any debate for a ‘firewall’ protection, the principle is ‘no penalties for withdrawing labour power’.