Chris White Online

If workers in a democracy are not able to withdraw our labour power without being ordered back to work we are not free.

Workers remain ‘wage slaves’ to whatever the employer or the state wants.

Penal powers (other than losing pay for time lost) ought not be available to employers,

An alternative workplace policy is to get the repressive state apparatus out of the workplace, to limit corporate law firms in industrial disputes, to respect workers’ rights and union freedoms and with industrial relations institutions that support unionism.

Industrial action a lawful right for an individual worker, workers collectively and their unions has to be ‘firewalled’. The ‘firewall’ is an impenetrable barrier, a modern image more secure than that of the old ‘shield’.

No corporate lawyer or common law judge can get through it to penalise workers withdrawing labour.

I advocate the firewall right to strike as a key means without which any 21st century collective bargaining system and democracy cannot be fair.

Labor’s Fair Work Act (2009) could have but did not firewall industrial action. The provision could have read: ‘no legal action lies under any law whether written or unwritten in force in the Australian Commonwealth, or any State or Territory in respect of any industrial action that is protected action; unless the industrial action has involved or is likely to involve intent to harm public health and safety.’

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

No one argues against ‘the principle of the right to strike.’ No one in the union movement. Right-wing politicians do not deny the right to strike ‘in principle’.

The Howard government ads said: ‘We won’t take away the right to strike’. Right-wing theorists such as Hayek concede that ‘everybody ought to have a right to strike’. ‘Libertarian’ right-wingers attack the intervention of the state to dare take away the freedom of an individual to withdraw labour. But they argue for legal boundaries and in practice these can defeat the right.

Australian employers supported ‘the principle’ in the 1993 protected action reforms. But, the Australian Chamber of Commerce and Industry (2002) ACCI successfully asserted boundaries:

1. That the right to strike is only available as a last resort after there is genuine enterprise-based not industry wide bargaining;
2. That the right to strike is only exercisable in the negotiation of agreements, i.e. before they were made, or after their expiry, but not during the life of agreements: and
3. That the right to strike could only be taken over disputes or demands that concern industrial matters, in legal language described as ‘matters pertaining employers and employees’.

The contest is not over the ‘principle’, but over the boundaries. I criticise these boundaries as unfair limitations not affording the firewall right to strike.

6 Anti-strike features of WorkChoices remain

The ACTU (2009) Australian Senate Inquiry submission and labor law and industrial relations academics advocated unsuccessfully for these following restrictions in WorkChoices to be repealed.

(i) Unlawful industry strikes

Australia outlawing industry or pattern bargaining strikes retains a ‘world-worst’ labour law system for workers. Pattern bargaining is when there are common claims for wages and conditions on two or more employers for proposed collective agreements. But this prohibition is wrongly based and anti-union.

All effective industrial relations systems have elements of pattern or industry bargaining. Research by the Australian Centre for Industrial Relations Research and Training ACIRRT (2002) shows:

‘there is no sector in the Australian labour market or bargaining system in the OECD which fits the fictitious model of ‘genuine’ enterprise bargaining – all bargaining systems contain elements of pattern-setting and workplace bargaining.’

Earlier, industry bargaining was not prohibited, but in many cases the standard with industry awards.

The ILO (1996) criticised the Howard government’s Workplace Relations Act (1996):

’Provisions which prohibit strikes if they are concerned with the issue of whether a collective employment contract will bind more than one employer are contrary to the principles of freedom of association on the right to strike.’

The ILO Committee of Experts was concerned the Industrial Commission can determine the appropriate level of bargaining:

‘The Committee is of the view that conferring such broad powers on the authorities in the context of collective agreements is contrary to the principle of voluntary bargaining. …the choice of bargaining level should normally be made by the parties themselves, and the parties ‘are in the best position to decide the most appropriate bargaining level’ (General Survey on Freedom of Association and Collective Bargaining, 1994, paragraph 249).

In March 1999, the Committee found, in relation to multi-employer agreements:

‘The Committee notes that by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests.’ ILO (1999).

In considering the Howard government’s response, the ILO said (2001): ‘With respect to the right to strike in support of a multi-employer, industry-wide agreement for all practical purposes is prohibited.’

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. This comment is familiar in the contest with unionists. On TV 3/1/2008 and in the Australian Financial Review 4/1/2008 she said in an offensive tone that the Labor government would have ‘judges come down like a tonne of bricks’ on unionists in any pattern bargaining strike for collective agreements.

But powerful employers engage in industry and pattern bargaining. They seek common claims with employers in their industry. They support the ‘level playing field’ not wanting to be in competition on the price of labour, whether through forcing it down as low as possible, or in leapfrogging either to attract and retain labour or in response to union claims.

Employer industry associations campaign with common strategies to oppose union claims that is pattern bargaining. Industry and national bargaining throughout the world is not inconsistent with enterprise bargaining. The bargaining practice has to be determined by the parties, without unwanted legal state restrictions. Industry bargaining agreements with multi-industry employers does mean productivity advances. Peetz (2005) 152 IR and Labour Law academics in their Senate critique of the WorkChoices Bill argued making legitimate industry and pattern bargaining industrial action unlawful was unfair and continue to do so.

A reform is in the Fair Work Act for multi-employer bargaining should employers and unions genuinely wish to do so. But again most unfairly, protected action and good faith bargaining orders are not available, giving the upper-hand to employers. Furthermore, it is unlawful to coerce an employer to make a multi-employer agreement or to discriminate against the employer if they have not entered into a multi-employer agreement.

(ii) Employers frustrating compulsory secret ballots

WorkChoices mandated complex compulsory secret ballots for protected action. Formerly the union organised member approval in a democratic vote. No abuses were cited, nor was there a demand for change from union members. State controlled compulsory secret ballots were asserted as right-wing political ideology. Secrecy was from other fellow workers.

Howard government Ministers’ used political spin that union leaders force workers to strike, but this is unfounded, see Hyman (1989) on understanding strikes and Waters (1982) sociological analysis of industrial conflict and strikes in Australia.

In Howard’s Workplace Relations Act (1996) three days notice of protected action gave some scope for unions to exert economic pressure within enterprise bargaining. A postal ballot was voluntary and in practice not often used. Under WorkChoices (2006) it was compulsory for unions to comply with 45 sections of complex process requirements for a protected action ballot (PAB). The AIRC polices the process and determines submissions. The Australian Electoral Commission conducts the ballot.

Rather than negotiating, employers as parties to the ballot process were able to pursue any number of baseless technical reasons why a protected action ballot not proceed, Bukarica (2007).

This included objecting to the questions that the union puts to its members on ‘the nature of the industrial action’ on the ballot paper or on the details on the electoral roll or that the union is pursuing ‘prohibited’ claims or on the manner of the union tactics or pattern bargaining or technicalities after the ballot – all able to frustrate the process. The employer focus was mostly that the union ‘was not genuinely trying to reach agreement’, again in many instances scope for the AIRC to police bargaining behaviour and the reasonableness of the claims. Corporate lawyers in numerous cases on the relatively small number of protected action ballots strikes challenged, made the process more costly and delayed lawful action, McCrystal (2009).

For the PAB, unions have to ensure a quorum of at least 50 per cent of eligible voters who must cast a vote, of which more than 50 per cent must approve the action. Only a simple majority of valid votes cast is warranted and indeed the quorum rule may hide the true level of support for the strike. For example, looking at votes in two workplaces of 100 employees, where in the first 49 employees in the ballot vote, all in favour of strike action and in the second, 50 employees vote, 26 of them in favour of strike action. In the first example, strike action would not be authorised, while in the second it would, even though it would appear that there was greater active support for the strike in the first workplace. A simple majority of people who vote is not enough continuing the perverse tradition of WorkChoices where employees can vote to bind themselves to the terms and conditions by a simple majority of voters but in order to authorise industrial action a higher standard is in place. The ILO has held that while: ‘the obligation to observe a certain quorum…may be acceptable…The requirement of a decision by over half of all the workers involved in order to declare a strike is excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises.’ Novitz (2003).

This is all designed to assist employers to frustrate the economic bargaining power of the strike weapon and to restrict traditional short ‘rolling stoppages’ tactically organised on the job that are more risky. But unions do manage to get through the 45 sections for positive votes for lawful industrial action and with successful outcomes.

Under the Fair Work Act (2009) the process for a compulsory secret ballot has been refined, somewhat easier (yet to be tested) and still complex and an employer can take technical objections and challenge union bargaining behaviour. An individual worker still cannot be compelled to take protected action even with a clear majority in favour.

The contrast in WorkChoices with employer lockouts is significant Briggs, (2004). There is no ballot requirement for employers legally locking out their workforce in bargaining for collective or individual agreements – no balloting of management, directors or shareholders.

The principle of freedom of association is still breached. Workers and their unions have to be legally able to administer their democratic strike vote of members without interference from the employer and/or the state.

(iii) Industrial action ‘not protected’ still banned

The Labor government’s absolutism, the same as WorkChoices, in prohibiting all strike action during the term of a collective agreement is most unmerited. Earlier, unprotected action was not always unequivocally illegitimate and liable to be made unlawful and penalised. One example is it is reasonable that unions are not always prohibited from taking protected action during the agreement’s life if the new claims are not in the agreement. But this is banned.

Most significantly, the AIRC and now Fair Work Australia is compelled to automatically make orders to stop unprotected action threatened, organised or undertaken. This is irrespective of the merits, that workers’ grievances may be just, or that it may be better to conciliate rather than make the order. Politicians attack so-called ‘wild-cat’ strikes. Action in defiance is legally coercion and attracts automatic fines or imprisonment. Common law tort actions for damages are available.

This total prohibition is repressive of all workers’ responses to harsh and unfair management decision-making. Giant corporations in mining, banking, communications and manufacturing, as well as governments as employers, are ruthlessly able to oppose any collective resistance of their workforce over grievances and deny the right to strike.

Outlawing all unprotected action has wider serious ramifications undermining democratic freedoms, as it prohibits legitimate social and political protest stoppages and over issues such as the environmental crisis.

(iv) The right to strike over the environmental crisis risky

There are great challenges for employers and workers to combat global warming, to respond to the environmental crisis and for industry to invest in ‘green jobs’. Effective workers’ rights can assist change. The lawful ability for workers and their unions to negotiate and take industrial action over environmental issues ought not be risky or unlawful. Protected action on the environment may be questioned as legally ‘not pertaining to employment’ (see below).

Union ‘green bans’ are historically a key environmental activity pioneered in Australia. With community support, they are for the protection of the environment or conserving built heritage against the short-term profit making of developers. Novitz (2003) argued:

‘…that green bans allow the values of the ‘life world’ Habermas (1997) to permeate the capitalist system. The Sydney green bans, were where constitutional democratic procedures have not decided how to develop Sydney before the labourers stepped in; profit making builders had. The green bans may be understood as taking onestep further a union goal traditionally applied to setting wages and conditions of employment; substituting a conscious group decision for a market determination.’

WorkChoices and the Building and Construction Industry Act (2005) outlaws green bans. The Australian Building and Construction Commission, the ABCC can interrogate and prosecute workers and unions for legitimate industrial action on the environmental crisis.

‘Green Bans are going to become increasingly important as we head into an era of climate change over the next 10 years . . . and the Greens policy is to allow workers to make climate change not just a household issue, which they already are, but a workplace issue. The Greens have a very clear policy on this that allows workers to have the internationally recognised right to strike for whatever matter they choose, if that’s an environment matter, so be it.’ Senator Bob Brown, leader of the Greens’ party.

The Fair Work Act (2009) should have ensured a lawful green ban.

(v) No strike pay

Under WorkChoices no strike pay was an obsession, with strict prohibitions. It was an offence for an employer to pay for time lost for a strike and always four hours. Workers 15 minutes late after collecting on the job for a family of a worker killed were docked four hours pay. PM Howard supported a company that docked a full week’s pay from workers because they had a ban on overtime in support of a collective agreement. The Fair Work Act abolished this, except for unreasonably keeping it for unprotected action. But for protected action. employer deducts pay for the actual period of time the workers stopped work. If partial work bans are implemented employers will be able to issue a notice and deduct a portion of pay, with disputes resolved by Fair Work Australia FWA.

Keeping 4 hours deducted for action unprotected is a disincentive to return to work. There are examples of half hour stop-work meetings where workers would return to work and then be docked a further three and a half-hours. There ought to be paid meetings for employees to meet collectively to hear report backs without any deduction at all.

There should be scope for Fair Work Australia to determine on the merits, e.g. where there is unnecessary employer provocation that strike pay is warranted. Workers accept pay is docked for lost strike time, but feel aggrieved when a strike is provoked unnecessarily.

7 Further restrictions on the right to strike remain unfair coming soon.

joe hill