7.Right to strike concluding

Skilled industrial relations advocates settle collective bargaining and workplace disputes by fair negotiation and agreement without any recourse to industrial action. So most HR managers are not afraid of the firewall right to strike.

For example, many employers accept the Australian Institute of Employment Rights AIER book Australian Charter of Employment Rights 2007 (pages 97-100). They have no issue e.g. with statements, such as 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.’

In industrial relations practice, most HR managers do not resort to penal sanctions.

The firewall protection is not too much for reasonable employers.

2 ‘Strikes will erupt everywhere’ line

This is again just not reality. Strikes do not simply erupt if they become legal. Countries that have a collective bargaining system that has an effective right to strike and a system of preventing and settling disputes often have fewer strikes.

Right-wing politicians assert policy to repress strikes, but Romeyn (2008) argues it is not a power balance.

Waters (1982) shows there are deeper and more significant economic and workplace issues contributing to strikes. Paradoxically, a key factor in producing strikes is the belief by right-wing politicians that they can be eliminated.

History shows that under repressive anti-strike regimes, workers still struggle and take industrial action to defend their interests. The issue for unionists is: are we slaves or are we to be free?

3 ‘The hurt to everyone’ line

‘This country cannot afford to see increases in industrial disputes which put at risk Australia’s global reputation’; ‘there can be no going back to the industrial culture of an earlier age’ and ‘We require these clear, tough rules to make the point that industrial disputes are serious. They hurt workers, they hurt businesses, they can hurt families and communities, and they certainly hurt the economy’ and ‘industrial action comes at a cost to the economy. It therefore should not be without cost to those engaged in it ‘ and ‘We want people abiding by the rule of law.’

For hundreds of years workers have heard this refrain that a strike causes hurt. It is not the case. And
the right to strike is a means and ought to apply.

But these are from Kevin Rudd during the election campaign to appease the corporate employers.

The contradiction is such ‘hurt’ is legally permissible by protected action, i.e. the right to strike prevails. So as we have seen it is the industrial action that is unprotected. The workers’ freedom we have argued is more important than the alleged hurt.

4. The ‘capital/labour conflict does not exist now’ line

The line that the capital/labour conflict is anachronistic and thus the right to strike anachronistic flies in the face of the real (albeit lessened) contest between capital and labour, between corporate management and organised labour over major employment issues. Such contests have and can involve organising industrial action and for such workers’ interests protected industrial action is critical.

Indeed, history demonstrates in a capitalist economy forms of conflict occur due to the differing collective interests of the workforce and the owners of capital. Also, industrial conflict exists with the government/state as the employer.

As well, employment contracts are based on hierarchical management authority structures. Inevitably, grievances and conflict at work do arise responding to harsh and unfair management. The authority structure provides a focus point for the tension between employment as a market transaction and the need to respect the humanity and dignity of workers. At times, the resolution of such tension requires strike action to resolve grievances.

There have been periods of union quiescence where capital rules and the workforce are subservient, and periods of greater struggle and back again.

Powerful corporate associations, right-wing ‘think tanks’, media and right-wing MPs promote this end of ‘class warfare’ line.

But WorkChoices was a class attack by the interests of capital and the state on the working class.

YRAW was a working class political response in a democratic election campaign.

Another line is that employers and employees are in a ‘partnership’ so strikes are of the past. But we are not opposed to an industrial relations system where the strike weapon is rarely needed, where there is workplace democracy, where workers’ grievances are peacefully solved by negotiation and consensus, where collective bargaining is fair and where union rights are upheld by management.

But such partnership and industrial relations system is no reason not to have the firewall strike. It is only a means, a reserve power, not necessarily used.

5 ‘In the modern workplace employers and employees are all equal’ line

As we are all equal in the workplace, so the line goes, there is no need for the right to strike to balance the power relationship.

This is ‘spin’ put about by the rich and powerful, by giant corporations like BHP Biliton and Rio Tinto ceaselessly striving for capital accumulation and profits, the business associations the Business Council of Australia BCA, the Australian Mines and Metals Association AMMA, the Australian Chamber of Commerce and Industry ACCI, the Australian Industry Group AIG and their ideologues in the Murdoch press. They deliberately distort and invert the workplace reality of employer dominance and employee submission.

But workers experience is that when it comes to a power contest, employers rule in the workplace. Workers through the employment contract are subordinate socially, subject to the division of labour in industry and subordinate occupationally in their workplace position. The employment contract legally enforces this position for the individual.

The very essence of the employment problem is subordination, the very weakness of the worker. The industrial reality behind the ‘equality of contracting’ is an act of submission; in its operation a condition of subordination. Workers are in a weaker bargaining position, vulnerable to the specific and collective power of capital.

Historically, the object of labour law has been, and will always be, a countervailing force to counteract this inequality of bargaining power that is in inherent in the employment relationship.

Even with the right to strike, corporations still rule, but hopefully more fairly. Such inequalities of power are central to a market economy with giant transnational companies. Even more, workers need the right to strike.

6 ‘Declining strike numbers and the decline of blue collar militant means the right to strike is irrelevant’ line

In an era of the lowest working days lost for 45 years, strikes are not a public or industrial relations problem in stark contrast with the strike waves of 1973-4. With strikes so low, it is an appropriate period to have reforms. Of course, this has not stopped right-wing politicians creating fear about strikes. Such political ideology has to be challenged.

Just because the strike level is at record lows and recessionary forces make industrial action more difficult does not mean that the right to strike does not need to apply, but the reverse. For workers in these most difficult times of insecurity, a lawful strike is warranted.

The ‘declining strike numbers’ line ignores the reality of protected action in the last decade between large corporations and unions in mining, coal, building, transport, and manufacturing. There has been a decline in the numbers of the politically class conscious blue-collar militant unionists organising with strikes contrasted with white-collar employees. But blue-collar workers still exist and struggle.

Significantly, white-collar sectors in education, the public sector, the finance sector, the universities, nurses and professionals had to resort to protected industrial action in bargaining with the more powerful government employers. A white-collar working class requires a right to strike to respond to employer caused grievances.

The repression of strikes in the last decade has made organising strikes most difficult. The Australian union leadership has responsibly advised that industrial action is often too risky. We have a generation of union growth organisers who have never led a strike for fear of it being unlawful.

But a contrary point can be made for the right to strike. Where unions are able to promise and pursue protected action, this promise, as a last resort, but not exercised, contributed to agreements being reached without resort to any strike action. The right to strike is downward pressure on strikes.

7 ‘The precarious workforce cannot strike’ line

With a significant number of Australian workers in the precarious labour market who do not strike, the right to strike is less relevant is the line. Unions respond to the fragmentation of the workforce: casualisation, dependent contractors, long hours, deepening inequality of work for those at the lower end of the labour market, those exploited on individual contracts, youth, women, the work/life collision, gender issues etc. Casuals have such precarious positions whose subjective ability to strike is low.

It is simply not the case that the greater workforce female participation means less ability for strikes as increasingly women workers withdraw their labour power to rectify grievances.

But a difficulty in participation or organisation is not a reason to deny rights. The stronger argument is that we should ensure all precarious workers are able to exercise the right to strike, even more so because they are in a poor bargaining position.

8 ‘The majority of workers are non-unionists who cannot strike’ line

The majority of workers are not in unions, so the right to strike is not relevant is the line. But now and in the future non-unionists are legally able to have collective non-union agreements. These non-unionised workers are not denied the legal protection to strike, however difficult it is for them.

Unions are in decline so the line is there is no need for the traditional union right to strike. However, the inevitability of permanent union decline is not certain. The union organising strategies for renewal amongst non-unionists are gradually succeeding.

9 ‘Contractors are not employees and cannot strike’ line

One reason for the strike decline is employers make employees into contractors, so they not denied work rights, including the right to strike. But first there are strikes against employers forcing workers into being contractors.

Where they are employees, devices to avoid rights have to be resisted. The difficult position of such employees is an argument that the right to strike should be available. The larger numbers of dependent contractors means they are less likely to be in a position collectively to exercise their rights to strike: but not entirely, as it is a question of organising.

10 ‘Knowledge workers and professionals do not strike’ line

In the ‘post-Fordist’, high skilled knowledge economy, the high paid knowledge professional is an individual who does not take collective action goes the line, so does not need the right to strike. Again this is not an IR reality.

At times high paid computer professionals do take collective action, e.g. in 2007 IBM workers conducted an international threatened ‘virtual strike’ to negotiate gains. Professional workers should not be denied the right to strike. The ‘individualisation’ of the workplace does not eliminate the capacity to organise collectively.

Furthermore, the right to strike has relevance for the individual in common law contract negotiations who may be victimised, dismissed etc and requires protection.

11 The ‘we went on strike defying the law so we do not need a right to strike’ line.

‘What’s wrong with a good bloody strike. When the boss plays up, give ‘em a good 24 to left off steam. If the boss doesn’t agree to a decent pay rise give ‘em 48. Protected, unprotected just give it to ‘em. I’m sorely tempted on behalf of some of the most militant unionists in the country to simply say well you can all get knotted, we’re workers and we have a right to strike, without any new laws. You can all catch us if you can. If the law is bad, then strike against it.’

Many unionists reasonable hold these views. WorkChoices and the BCII Act had no democratic legitimacy.

They are unjust laws. There are strong arguments to defy bad laws. Some workers and unions have and will.

It is pertinent to recall that in different times the 1969 mass strikes unions defeated the then penal powers with national strike protest actions after the jailing of union leader Clarrie O’Shea for not paying strike fines, Hutson (1983). After this there was recognition that penal sanctions were ‘dead letters’ and not justified. Unionists organised strikes knowing that the penal powers would not be used.

But in recent decades, employers do institute legal proceedings and unions have to add to the settling of the dispute by agreement for those proceedings to be dropped. Some unions are forced to the Courts and to pay the fines. These days organising industrial action is far more hazardous. But unionists should not have to organise under the threat of penal sanctions for a human right.

Future lobbying

YRAW convinced voters to democratically dispatch the Howard government into history’s bin, but not yet all of WorkChoices. The lawful strike is a critical means to defend and advance the interests of working class families in this recession and any recovery. Social unionism has the ability to mobilise. Although unionists may think pessimistically about reforms when the Labor government says the Fair Work Act (2009) will not be changed, the ACTU can still organise optimistically and the VTHC has a proud history of just doing it!

The firewall right to strike is a measure of any labour movement’s strength. The challenge is ahead of us to have rights at work implemented.

I end by raising for debate historical contradictions and challenges.

1. Modern states are more and more authoritarian, employing many forms of penal powers against its citizens, often for political power. Governments never take the right to strike so seriously that they relinquish the power to take decisive state action through force to break a strike. The right to strike is always contingent on the state’s ultimate monopoly of force.

2. That as the world capitalist crisis develops in this severe world recession, corporate interests use state power even fiercer against workers’ interests and to disorganise the collective strength of unions.

3. A major historical contradiction of the 20th century has arguably been that left political parties when in government - whether reformist, labour, social democratic or Stalinist -often fail their working class supporters and instead support capitalist interests.

Chris White has a Law/Arts degree from the University of Adelaide in South Australia. He was Industrial Officer for the Australian Workers Union and the Liquor Hospitality and Miscellaneous Workers Union. He was for 17 years an elected official of the United Trades and Labor Council of South Australia, the last period as Secretary. He now lives in Canberra, capital of Australia, researches labour law, does part-time work for unions and sessional tutoring in Politics at the Australian National University.

References

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
ACTU (2004-9) www.actu.org.au. www.rightsatwork.com.au; Senate submission on the Fair Work Bill
https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=254ebf88-b29e-4170-9777-aae468cf23c6 Congress 2009 www.actu.asn.au/Events/Congress2009.aspx
Australian Chamber of Commerce and Industry ACCI (2002) The Right to Strike Review no 89, http://www.acci.asn.au/
ACCI (2005) Senate WorkChoices submission 2005 number no. 153 http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/index.htm
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
Bukarica, A. (2007) ‘Secret ballot: applications under the Workplace Relations Act’, Law Society Journal, February 2007, pp.75-76.
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).
Durbridge, R. (2009) ‘Unfinished business: Labor’s Fair Work Act and the New Union Agenda’ Australian Options Winter 2009.
Creighton, B. and Stewart, A. (2005) Labour Law 4th edition. Sydney: Federation Press.
Forsyth, A. and Stewart, A. (2009) editors Fair Work The new Workplace Laws and the WorkChoices Legacy (Federation Press, Sydney).
Electrolux (2004) High Court. Electrolux Home Products Pty Ltd v AWU (2004) 78 ALJR 1231.
Federal Court. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Electrolux Home Products Ltd (2001) FCA 1600.
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).
Ewing, K. (2008) ‘Restoring rights at work Lessons from the UK.’ Professor of Law, Kings College London (Published 10.11.08 by Catalyst http://www.catalyst.org.au)
Glasbeek, H. (2009) ‘Rudderless in a Sea of Choices: The Defeat of Your Rights At Work—Analysis and a Possible Response’ Professor Emeritus and Senior Scholar Osgoode Hall Law School, York University, Toronto and Visiting Professorial Fellow, Victoria University, Melbourne. Dissent Autumn/Winter 2009, p33 and posted http://chriswhiteonline.org
Hyman R (1989) Strikes. 4th edition London: Macmillan.
Hutson J (1983) Penal Colony to Penal Powers Sydney: AMFSU.
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Irving, M. (2008) ‘The freedom to agree should not be restricted to matters pertaining.’ Australian Institute for Employment Rights The debate 2008. www.aierights.com.au
Peetz, D. (2005) 151 Industrial Relations and Labour Law Academics Senate WorkChoices No 175. http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/submissions/sublist
Roberts, T. (2005) ‘Civil Disturbance’ Workers Online June 2005, http://workers.labor.net.au/features/200506/c_historicalfeature_tom.html; 'Into the Industrial Dark Ages: the civil liberties implications of the Federal Government’s Industrial Laws for the Australian Construction Industry' in Civil Liberty, the Journal of the NSW Council for Civil Liberties Inc. June 2005
Romeyn, J. (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ Published by the Australian Parliamentary Library

http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=PRSPUB&ID=2789.

McCrystal, S. ‘Shifting the balance of power in collective bargaining: Australian law, industrial action and WorkChoices’, The Economic and Labour Relations Review, 16(2), May 2006, 210;
McCrystal, S. ‘Smothering the right to strike: WorkChoices and Industrial action’, 19 (2006) Australian Journal of Labour Law, p. 201
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Waters M (1982) Strikes in Australia A sociological analysis of industrial conflict (Allen & Unwin, Sydney).

My papers:
White, C. (2009) Senate submission the Fair Work Bill No 122 http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
White C (2008) ‘The right to strike’ chapter in Evatt papers Sheil, C (ed) ‘The State of Industrial Relations’, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.
White, C. (2005) ILO Protection of the Right to Strike: ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html.
White, C (2005) ‘The right to politically strike? The case for re-evaluation’. Evatt Foundation on-line13/4/2005: http://evatt.labor.net.au/publications/papers/139.html
White, C. (2004). ‘Right to strike issues in the October 2003 Universities national strike’ AIRAANZ 2004
White, C. (2005) ‘The Right to Politically Strike?’ AIRAANZ 2005 Conference Sydney Universityhttp://airaanz.econ.usyd.edu.au/papers.html
White, C. (2005) Senate Submission on the Building and Construction Improvement Bill
White, C. (2005) Senate Submission on WorkChoices Bill (2005) Senate Inquiry submission No. 129;www.aph.gov go to Senate submissions
White, C. (2005) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No56, 66. www.jape.org.
White, C. (2005) ‘Howard makes the 'blue' unlawful. The right to strike is down the WC’, Evatt Foundation on-line 2 November 2005, http://evatt.labor.net.au/news/358.html
White, C. (2006) pamphlet on ‘How Howard is taking away the right to strike.’
White, C. (2005) ‘Howard’s IR plans’ ICTUR International Union Rights Journal
White, C. (2006) ‘Provoking Building and Construction Workers’ 20th Conference AIRAANZ 21st Century Work: High Road or Low Road? http://www.aomevents.com/conferences/AIRAANZ/papers.php. New Matilda 7th July 2006 http://www.newmatilda.com
White, C. (2006) ‘The Perth 2007 and the right to strike’ ICTUR International Centre for Trade Union Rights magazine International Union Rights. Volume 13. Issue 3.
White, C. (2006) ‘The Perth 107 Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au
White, C. (2006) ‘Right to strike contest. Provoking Building Unionists’ http://www.aeufederal.org.au/E07/FR/Perth107.pdf
White, C. (2006) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.
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/
White, C. (2007) Criticism of Kevin Rudd’s limitations on the Right to Strike.www.aeufederal.org.au/E07/election
White, C. (2007) Howard’s Prohibited Content on strikeshttp://solidarity.redrag.net/2007/05/03/prohibited-content/
White, C. (2007) ‘Restore the Right to Strike’ www.greenleft.org.au/2007/711/36927
White, C. (2007) ‘From Penal Colony to Penal Powers’, www.greenleft.org.au/2007/715/37126
White, C. (2007) ‘The Right to Strike to Save the Environment’
www.aeufederal.org.au/E07/election.html
White, C. (2007) review of the DVD film by Joe Loh ‘Constructing Fear: Australia’s Secret Industrial Inquisition’ (www.constructingfear.com.au)

http://bushtelegraph.wordpress.com/2007/08/29/%e2%80%98constructing-fear-australia%e2%80%99s-secret-industrial-inquisition%e2%80%99/

White, C. (2004) Review Jim Marr, ‘First the Verdict The true story of the Building Industry Royal Commission’ Australian Options, No. 35, Summer 2004 www.australian-options.org.au.
White, C. (2004) ‘Howard Threatens the Right to Strike’ Australian Options, No. 38.

Soon...what are the developments under the Fair Work Act?

Right to strike