Further restrictions by Rudd on the right to strike remain unfair
The Fair Work Act 2009 retains most of these (see my Evatt papers in the references):
• The issue of the legally restrictive and narrow ‘matters pertaining to the employment relationship’ doctrine. I discuss this below as it is retained in the Fair Work Act.
• Fair Work Australia has to stop the protected action in circumstances that can be a denial of that right.
This occurs where third parties suffer significant harm they have rights to seek stop the protected action orders and is far too wide as by definition third parties can normally be adversely affected; after suspension of a protected action ballot; and power for ‘cooling off’ periods stopping protected action. The right to strike is diminished when such provisions can be used to stop lawful strikes.
• Not all of the complex technical legalities in the process requirements for protected action are repealed (see more below). The Fair Work Act 2009 has a form of good faith bargaining, retains process provisions and that the union must be genuinely bargaining before seeking a protected action ballot – a recipe for juridification.
• The right to strike for individual bargaining is not in the new system for the many higher paid common law individual agreements. Under the Fair Work Act 2009 protected action only applies to collective bargaining in the enterprise.
• Occupational health and safety action was legally made more difficult with a subtle legal change putting the onus on the worker to prove the health and safety risk. All the restrictions on OHS industrial action are supposed to be removed. The details of this OHS right to strike are still contested.
A new power for Fair Work Australia includes a deadlock procedure for protracted protected action causing significant harm to the bargaining parties themselves. Protected action terminated can lead to a limited form of arbitration – potential for jurifidication.
Labor repealed some restrictions.
• Labor did repeal the ‘prohibited content’ restrictions that made certain union claims for recognition, for union training leave, for union deductions etc unable to be lawfully in a collective employment agreement. This was a most severe restriction on the freedom of collective bargaining in breach of International Labour Organisation ILO practices for employers and employees to determine freely the content of what they negotiate over without state interference. PM Howard did not trust employers who wanted to agree to work with and respect employee rights in their union organisation.
• Labor repealed the provision whereby a strike is not protected if non-unionists are involved or with unions who are not involved in protected action.
• Labor repealed ‘greenfields employer agreements’ where the employers in planning for new projects could make employment agreements with themselves! They were without a workforce or without the unions and then these greenfields employment conditions were enforced on the new employees in the greenfields’ project without a right to strike. In the Fair Work Act (2009) greenfields’ agreements are with unions.
• The right of an employer to mount an offensive lockout is removed. But the lawful lockout is allowed in response to workers’ protected action. This in itself is a weapon that arguably the more powerful employer ought not to have, Briggs (2004, 2005). Also, anything short of a lockout by an employer is not unprotected industrial action. A unilateral change in the usual performance of work can be unprotected industrial action for an employee but not an employer. So an employer is free to cancel all overtime during bargaining and it is not unprotected industrial action. But an overtime ban by employees would be unless authorised by a protected action ballot.
What the firewall right to strike would involve
We accept that when it is proved that there is intent to damage the health and safety of the community such a strike is not to be protected. This is a reasonable boundary, as is protection for the rights of persons and property in certain circumstances.
When enacted the right to strike means there is a positive benefit for all parties in industrial relations and in the public interest. As the union threat in bargaining is legal, as a last resort, agreement may be made without strike dislocation and with fair play.
Despite what right wing politicians believe, the firewall right to strike and its industrial relations practice is a factor for industrial peace and the prevention of strikes.
The firewall strike involves the following features.
• 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.
• Whatever claims are decided on democratically by workers to bargain over be allowed. Freedom of association and collective bargaining with the right to withdraw labour power in any way determined is paramount.
• ILO standards for the protection of the right to strike apply. In 1983, the ILO emphasised their principles.
‘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.’
Novitz (2003:368) concluded:
‘…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.’
ALP MPs have supported this ILO principle.
Kevin Rudd in 2005 criticising the WorkChoices Bill supported the ILO citing my 2005 paper ‘Inside the ILO Tent’ Evatt Foundation and in ‘John Howard’s Radical Industrial Relations Regime and its Incompatibility with ILO Standards’ 25/11/2005. But his government in 2009 ignores ILO standards.
• Industry and pattern bargaining industrial action is lawful as the industrial parties have freedom to determine at what level they bargain.
• The individual worker is protected under all circumstances: no dismissal or victimisation: no loss of social security.
• The right to strike on occupational health and safety is absolute and not conditional.
• The right to strike is not more restricted in specific industry settings: i.e. the Building and Construction regime is abolished; restrictions in trade-related industries, such as the waterfront are repealed; in ‘essential services’ the right to strike is restored.
• The ancient British common law master and servant doctrines of tort and breach of contract do not apply.
Workers exercising and the union officials organising the strike have complete legal protection against common law actions in tort, contract and in equity.
There is no possibility of crippling damages. Industrial disputes are settled by the parties or in the industrial relations commission system and not in the common law courts.
• 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.
• Competition law outlawing solidarity strikes and secondary boycotts is removed by the repeal of the Trade Practices Act (1975) provisions.
• The right to strike extends internationally. As unions organise globally in response to powerful multi-national corporate interests, the collective bargaining system protects the right to strike across countries. European labour laws and rights for workers extend across countries based on the limited European protection for the right to strike, Novitz (2003). Australia requires similar rights based on ILO minimum standards so Australian workers can combine with other workers to bargain with the power of corporations.
• The right to politically protest by withdrawing labour is lawful. This right to strike exists as a last resort in response to government public policy. Workers and their unions have as citizens in a democracy legal protection for short political protest strikes, such as attending rallies and assemblies against WorkChoices and any issue that impact on workers social and economic interests.
• For more ‘political’ grievances, this right in a democracy exists: such as attending protest ‘No War’ rallies; on vital foreign affairs issues such as protesting against dictatorships and fascist acts and supporting international human rights struggle. Scope for political communication and freedom of speech as determined by the workers and their union is protected. This democratic right implements the ILO right to have political protest strikes. (See Novitz 2003 and my papers). The Fair Work Act (2009) still denies such a right. Obviously, the ILO does not support any ‘purely political’ strikes to bring down a government.
• Fines against strikes are at a minimum, as the principle of restorative justice applies.
• Provisions in the Crimes Act and in Australia’s anti-terror laws that makes certain strikers criminal are repealed.
Specific arguments to follow.
right to strike
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