Specific issues on the right to strike
1 Remove the protected action/unprotected action dichotomy
One historical problem is the structure of the industrial relations regime, here the ‘protected/unprotected action’ dichotomy.
Industrial relations participants and unions have been forced to accept the structure of the labour law responding to industrial action to be within the legal framework of ‘industrial action that is protected and industrial action that is not protected’ – or ’lawful/unlawful’ boundaries. Policies on industrial action are framed within this dichotomy.
Earlier, industrial action ‘not protected’ was at times legitimate and not necessarily to be made ‘unlawful’, depending on the circumstances and merits.
But under Howard’s 1996 Workplace Relations regime, the protected/unprotected dichotomy changed for the worse.
Over a decade, powerful corporate lawyers were used to press their technicalities about what was within the scope of protected/unprotected.
After decisions by the Federal Court, the AIRC and at times decisively by the High Court such as the Electrolux (2004) decision, the boundary of the lawful strike shifted against unions.
Protected action was narrowed and the scope of unprotected action was widened and found to be unlawful and strikes penalised. Australia’s ‘protected/unprotected’ regime was criticised by the ILO. Then with WorkChoices, the protected/unprotected dichotomy again further moved against unions. The AIRC was compelled to halt industrial action not protected. Legal processes for protected action were more risky.
Labor’s Fair Work Act has a widened scope for protected action and a narrower scope of unprotected action, but backed retains much of WorkChoices. The issue is there should not be this dichotomy.
What Australia’s modern collective bargaining system requires is a new paradigm – the firewall right to strike. Here lawful industrial action is not confined to enterprise bargaining, but as a principle is central to all bargaining and a democratic right and political freedom to defend and extend workers social and economic interests.
2 No common law sanctions against strikes
The right to strike requires total protection from the British colonial doctrines of the common law of tort that declares a strike a civil wrong, where damages are liable. The strength of protected action is to forbid employers suing unions in tort at common law.
This ‘employer common law right’ against unprotected action today contrasts with the immunity from the tort law for industrial action gained by UK unions in 1906.
Employers took no common law actions against union strikes from 1920’s to the 1970’s. The industrial relations practice was to settle strikes in the conciliation and arbitration commission.
Although strikes give rise to civil liability, employers were reluctant to sue when the strike was over, as it gives rise to bitterness in the future employment relationship. But right-wing politicians and employer associations campaigned tirelessly for the return of the common law against strikes. There has been a resurgence of corporate lawyers advising this tort process.
The common law doctrine that a strike breaches the employment contract is a legal fiction, as workers want to return to work under new conditions.
Judges still hold strikes intrinsically cause economic harm and are tortious. Unions risk the interlocutory injunction that halts the industrial action and the employer wins.
Behind judges’ legal reasoning is the policy for free market competition that is hostile to employment law and to union combination. Of course, there is much free competition amongst capitalists in economic rivalry that causes harm and damage to competitors: but rarely a civil wrong.
The ILO holds that the common law breaches the right to strike. An example in 1991 in Australia was the Pilots’ strike. The ILO criticised the then Labor PM Hawke government and the company’s use of the tort law with damages of $6.5 million against the Pilots engaged in a controversial enterprise bargaining dispute for higher wages (but outside of the Accord). Although the ILO did not uphold the Federation’s complaint, it did state that it could not view with equanimity a set of legal rules which:
‘1. appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein;
2. makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequences of their actions; The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action too promote and defend their economic and social interests.’
Also, the common law makes much union picketing tortious. The common law injunction stops picketing. This unduly restricts the freedom for unions to freely organise community assemblies.
The history of ‘strikebreaking’ by the route of the common law involves:
• the Australian legal anomaly of industrial action being a civil wrong at common law after 300 years, i.e. tort of interference with contractual relationships and inducing breach of contract; the tort of intimidation; the tort of conspiracy by unlawful means; and the tort causing loss by unlawful means;
• the ancient torts of ‘watching and besetting’ and ‘nuisance’ are still used today;
• how the defence of justification that the union was legitimately advancing and defending workers employment interests does not apply;
• why all of these common law doctrines should not be used in a modern IR system.
The Fair Work Act (2009) retains this masters’ weapon against any unprotected strike.
3 Process requirements and technicalities
I examined the case law on the union process compliance requirements under Howard’s 1996 Workplace Relations Act for protected action.
On the face of it and as initially interpreted by the AIRC it was a straight forward notice requirement to the employer of ‘at least 3 working days’ written notice of the intention to take the action’, together with the requirement that the notice state ‘the nature of the industrial action.’
But over the decade, senior employer counsel successfully argued a restrictive meaning of ‘the’ and ‘the nature’ in numerous cases. Courts held unless strictly complied with. The strike was not protected action and was unlawful and penalties applied, defeating the strike. Other technical process requirements were similarly enforced.
These requirements reappeared in WorkChoices, as well are in the compulsory ballot rules and remain in the Fair Work Act (2009). The hegemony of legal technicalities about the protected action process ought to be removed and fair play, merit arguments without regard to legal technicalities apply.
4 Delete ‘about matters pertaining to the employment relationship’
The words of the legal doctrine ‘about matters pertaining to the employment relationship’ remain in the Fair Work Act (2009). This means continuing legal confusion and uncertainty about what matters do pertain to the employer and employee relationship. Corporate lawyers can argue and judges rule that union claims are once more deemed as outside of ‘matters pertaining’ and that protected action cannot be taken.
But workers and unions deserve a collective bargaining system that allows the freedom to associate and to determine any claims and to bargain with the right to strike on those claims and to reach agreement.
The Australian High Court in the Electrolux (2004) case held that protected action is only for claims legally ‘about matters pertaining to the employment relationship’.
This limited the right to strike scope by holding workers cannot make certain claims and made difficult the practical organisation of industrial action. The legal issue of what claim ‘pertains to an employment relationship’ is complex, technical, and uncertain and with differing AIRC and judicial opinions as to what is covered. Predicting what strikes are protected is most uncertain.
The Full Federal Court argued for a pragmatic industrial relations response in a system where enterprise bargaining claims backed with protected action required a high degree of certainty.
The High Court, with a ‘black-letter law’ interpretation disregarding any realistic industrial relations outcomes, reversed the Federal Court and held that industrial action is not protected because the union genuinely believes the claim is lawful. It must only be a claim that a Court says is ‘pertaining to the employment relationship.’ The High Court held the claim for the ‘bargaining agent fee’ for collective bargaining from non-unionists did not ‘pertain to the employment relationship’ and that protected action could not be taken in support of such a ‘non-pertaining’ claim.
Unionists support a BAF as fair contribution to collective bargaining expenses and about employment it is available in other countries. To prohibit such claims is simply to frustrate unions who have to be very careful as to the basis on which they seek to take protected action. Even if all procedural requirements for taking are rigorously observed, an employer’s lawyer can pick apart the claims to identify one that is questionable in terms ‘of matters pertaining.’
High Court justice Kirby J in dissent started from the position that the capacity of the parties to freely negotiate employment conditions was the purpose of the 1996 enterprise bargaining regime where union protected action could be taken without common law liability. Calling for realism, Kirby J argued that all manner of workers’ claims were the industrial relations realities. He argued:
… 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).
In effect the policy of the majority of the High Court reduced the scope of union protected action by making it more vulnerable to the common law weapon. As the Federal Court said:
‘If the parties are to make rational and confident decisions about the courses of conduct, they need to know where they stand. It would be inimical to the intended operation of the WR Act (1996) to interpret it in such a way as to make the question whether particular industrial action is ‘protected action’, and therefore immune from legal liability, depend upon a conclusion concerning a technical matter of law…As this case demonstrates, that may be a matter about which well-informed people have different views.’
As these ‘matters pertaining’ terms remain in the Fair Work Act 2009 the legal status of protected action is most risky, Irving (2008). This is another form of juridification. I add that one reform is that claims can now be made that pertain to the relationship between a union and an employer covered by the proposed agreement.
Finally, I argue ‘matters pertaining’ is an old judicial reasoning device arising out of British Master and Servant status law.
Common law judges assigned legal rights by status, and ignored social or workplace justice: so the masters’ status at law is to be dominant and the servants’ status is to obey. Any hint of conflict, let alone withdrawing labour by a servant, was automatically criminal. Over many years, this status doctrine was imported in capitalisms’ freedom of contract law. Today this status reasoning is still applied as ‘matters pertaining‘, here the status of the employer and the status of the employee.
The judiciary can use the status device to declare what is white is black, i.e. not about employment. The doctrine that collective bargaining is restricted to ‘matters pertaining’ ought to have been removed.
5 Freedom to bargain?
Despite the ALP promise to ‘remove the Howard Government’s onerous, complex and legalistic restrictions on agreement content’ and that bargaining participants should be ‘free to reach agreement on whatever matters suit them’, subject only to the requirement that the terms be ‘lawful’, the Fair Work Act does not deliver on this promise. This is an undeniable breach by the ALP. In an unnecessary complex legality, the Fair Work Act (2009) makes a distinction between ‘unlawful’ and ‘non-permitted’ terms. It is still prohibited to strike for a claim for a ‘bargaining service fee’.
The Fair Work Act’s ‘non-permitted’ terms in relation to unfair dismissal, right of entry and reserving subject matters in future agreements re-introduces ‘prohibited content’ matters. This denies the parties rights to bargain fairly on any matter they like. It breaches ILO rights to collectively bargain and undermines reasonable industrial relations. That which later is held by a judge to be ‘not permitted’ is most risky for organising protected industrial action.
There is not any justification for the notion of ‘non-permitted’ content in agreements. Parties should be free to negotiate their own agreements. Employers and employees should not be told that, even if they freely agree on a matter that they regard as important to their relationship e.g. a commitment to address environmental issues, they cannot include it in their agreement, despite what they have agreed is in no way illegal.
Most unreasonably, like WorkChoices, the inclusion of ‘non-permitted’ content in a proposed agreement means any industrial action taken is unlawful: but we have a rider, unless those concerned reasonably but mistakenly think the content is permitted. Now that is an improvement, but will surely be legally contested.
More on the way.
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