2.State authoritarianism against strikes
PM Howard’s strategy in the growing economy was not only to allow the more powerful employers to increase profits by exploiting workers with individual bargaining contracts, but also the state repressing the ability of unionists to lawfully exercise collective bargaining power through our combined withdrawal of labour power.
WorkChoices included a unique legal regime for employers to choose a range of penal powers to attack unions’ legitimate industrial action and in more decisively subordinating their workforce to their rule. Collective begging.
State authoritarianism was a key feature. This included:
1. The Building and Construction Industry Improvement Act 2005 (BCII) was first rushed through the Australian Parliament in 2005 when PM Howard controlled the Senate targeting most unfairly only building and construction workers and their unions. The BCII 2005 made their legitimate industrial action ‘unlawful’. Howard’s politics was then to attack so-called ‘unlawful union action’.
Earlier, after a dispute was settled, employers did not want to sue their workers and unions for strikes. So the Howard government established, funded with millions of dollars, a new state body ‘a tough cop policing unionists’ blandly called the Australian Building and Construction Commission ABCC. Building unionists experience this as a ‘secret industrial inquisition’ instilling fear on building sites against workers.
This police force compels building unionists to give evidence on union meetings and any strike organisation with the threat of 6 months gaol. Workers’ civil liberties, such as the right to remain silent, are breached and they have fewer rights than criminals or suspected terrorists. The ABCC long after disputes are settled prosecutes workers and unions and fines have been made for so-called ‘unprotected’ building action.
The ILO (2005) condemned this BCII Act as in breach with basic minimum standards: PM Rudd says the ABCC will be abolished in 2010, but replaced with another body with similar powers that the ACTU and building and construction unions find unacceptable. See Roberts (2005) Ross (2005) and my papers on the BCII Act and the ‘Perth 107’ and the continuing contest Rights On Site campaign www.rightsonsite.org.au and www.arkstribe.org.au.
2. The Minister of Workplace Relations’ unprecedented unilateral power to halt industrial action if she forms an opinion that it may be likely to cause significant damage to an important part of the Australian economy.
3. Fair Work Australia replacing the Australian Industrial Relations Commission AIRC has no discretion to settle disputes but is compelled to use penal powers against unions with automatic return to work orders, rather than conciliating and arbitrating the claims and grievances in dispute on the merits. The Fair Work division of the Federal Court apply sanctions against unions as do common law courts.
Secondary boycotts or solidarity strikes are still unlawful, prohibited content caught by competition law, Australia’s Trade Practices Act (1975). Other state workplace relations bodies formerly assisting workers and unions such as the Fair Work Ombudsman are now to control union activity.
4. The politics of the government’s ‘law and order against militant unions’ with the ideology of penalising so-called union ‘unlawful’ strikes in contrast with no real strike issues as this is a period of historic low strike action in Australia.
3 The juridification of disputes
Historically, this state authoritarianism has three legal responses to industrial action:
1. total suppression, 2. some toleration or repressive tolerance and 3 some form of lawful strike.
Australian labour law has had years of suppression, periods of tolerance and repressive tolerance. In 1993, the then Labor government PM Keating, introduced a (limited) legal right to strike, protected action, for enterprise bargaining. Protection was afforded for industrial action in negotiating enterprise agreements against the common law and statutes deeming strikes unlawful.
‘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’, Romeyn (2008).
Australia moved more decisively under WorkChoices to suppression. This was a clear break with the century-old recognition within the Australian industrial relations system of workers’ collective rights to exert economic pressure through industrial action in order to balance the unequal bargaining powers between an employer and an employee.
This is an excessively legalistic regime with many prescriptive details.
It is the juridification of industrial relations where corporate lawyers dominate and courts use legal fictions to rationalise penalising unions.
Without doubt, as we shall see in the details that follow, access to corporate lawyers and penal powers by employers who choose to use them is a frightening power for any worker. Dictatorial management in the private or public sector who ruthlessly exercise workplace rule can do so against any industrial action that is not protected. There is no industrial fair play.
Although the Fair Work Act is simpler and easier to follow, the corporate lawyers remain dominant in industrial relations. The ‘command and control’ sanctions based legal regime contrasts with the (now abolished) 100-year old equity based Australian conciliation and arbitration system settling industrial action.
4 Beware collective begging
I cite the Australian Parliamentary Library Romeyn’s (2008) executive summary, an argument for striking a balance relating to industrial action.
‘• The International labour Organisation ILO and a number of Australian academic and other commentators have criticised the WorkChoices 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…
‘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 (2003).’
These arguments were ignored by Australian Members of Parliament and ought not to be.
right to strike
