Right to strike curtailed

The right to strike in Australia by Aron Neilson.
He is a dual qualified Solicitor in both Australia and England and is a Legal Officer for UNISON in the UK. This appears in ICTUR journal ‘International Union Rights’ Vol 16 Issue 4 2009.
Aron Neilson looks at the historical development of the right to strike in Australia. Despite improvements in new labour legislation that right remains severely curtailed.

On 1 July 2009 Australian unionists celebrated the end of the harsh and pernicious ‘Workchoices’ regime implemented by the now former Conservative Government.

Despite the widespread celebration at the abolition of the former ‘Workchoices’ regime, there remain large swathes of the new law which represent significant challenges for the effective representation of working people in Australia. One of the areas in which unions continue to face challenges is in regards to organised industrial action.

When we analyse the new law on industrial action significant remnants of the old regime can still be seen. An analysis of the industrial action provisions imposed by the new law suggests several concerning deficiencies for trade unionists and in these areas trade unionists will have to continue to campaign in order to secure their freedom of association rights.

In order to understand the current restrictions on industrial action we need to consider a short history of the right to strike in Australia. Historically there has been no legally protected right to strike.

A comment by Maurice Kay LJ in a recent English case that ‘the right to strike has never been much more than a slogan or legal metaphor’ could equally be applied in the Australian context. Instead of protecting the right to strike, Australian legislation has offered immunities to unions from liability in tort when they engage in industrial action in certain narrowly defined circumstances.

Since the first immunities were introduced in1993, the law has consistently been tightened so that Australian unions can only exercise a ‘right to strike’ free from both civil and in some cases criminal sanction in very limited circumstances.

These restraints were at there worst under the ‘Workchoices’ regime under the former Conservative Government, and whilst some tinkering has been done around the edges with the new Fair Work Act, the restrictions imposed on a union’s ability to access industrial action can be quite debilitating. At a time of declining union density the restrictions imposed on the right to strike have often left unions captive to unfair bargaining and management techniques adopted by employers.

So how does a union take industrial action under the new system? Well, in identical fashion to the old system, industrial action may only take place in pursuit of a collective bargaining agreement. In order to demonstrate that it is engaging in collective bargaining, the union must satisfy a tribunal of a number of things before a strike will be legally protected (if not legally sanctioned).

The union must satisfy the tribunal that it is genuinely bargaining with an employer in an attempt to reach agreement. To be considered to be ‘genuinely’ bargaining, a union must only be bargaining for content which is permitted by law amongst other things. This of course means that a union is artificially constrained by Government in what it may take industrial action over to secure in a collective bargain.

The way the law restricts agreement content is by maintaining that an agreement can only contain items pertaining to the relationship of an employer and employee. This is a quaint and often misunderstood notion in Australian labour law. It is a legal maxim which has stopped Unions from bargaining for conditions like salary sacrifice and restrictions on the use of contractors.

In fairness to the new law, the current Labor Government has allowed unions to bargain for items that also pertain to the union – employer relationship. For instance union delegate training may now be included in a proposed collective agreement whereas before it was questionable as to whether it offended the employer-employee relationship test.

Despite this merited relaxation on agreement content, the fact remains that there are still restrictions imposed on the content which an agreement may contain. For example, an agreement still cannot contain right of entry provisions better than those provided for by the Act.

Furthermore, an agreement cannot contain provisions entitling a union to take industrial action during the term of the Agreement.

Unions must move with caution in attempting to bargain with an employer to ensure that the unions proposed agreement content does not offend ill defined and quaint legal maxims which tribunals and courts often apply in an inconsistent fashion. If they are judged to be pursuing such items a union can be prevented from seeking to take industrial action in support of the agreement.

These restrictions on agreement content constitute a breach of International Labour Organisation (ILO) conventions.

Secondly the union must not engage in pattern bargaining. The restriction imposed on pattern bargaining is of course designed to stop unions attempting to negotiate terms and conditions across industry and using industrial action to support there claims across that industry.

The restriction on pattern bargaining limits agreement making to individual enterprises and of course discounts the notion that workers in for instance, the metal industry, might wish to secure common and terms and conditions across their industry.

Thirdly a union must ensure that it does not have in place with the employer that it is bargaining with a current enterprise agreement within its nominal term. Enterprise Agreements are term limited in Australia and a union is specifically prevented from taking any form of industrial action whilst the Agreement is within its term.

If a Union is satisfied that it has not engaged in pattern bargaining, or sought to bargain for unlawful content, can prove that any existing agreement has expired, and believes it has genuinely tried to reach agreement with the employer, then it may apply to the new industrial arbitral body Fair Work Australia for a secret ballot order.

A secret ballot order, if made, leads to a secret ballot taking place of all the employees involved in the bargaining unit on whether they wish to engage in industrial action.

Mandatory secret ballots were first introduced by the former Conservative Government who often claimed that union members were intimidated by union leaders into taking industrial action. Since the introduction of ballots, union members have overwhelmingly supported their unions calls for industrial action and very few, if any, ballots have been lost by unions. Despite this clear repudiation of the conservative mantra that unions intimidated members into taking industrial action, the new law has retained the secret ballot arrangement.

In seeking a ballot order the union must specify the action that it proposes to take in order for the employees to authorise it. This is quite a restrictive requirement because a union is limited to the specific action which is proposed in the ballot question and cannot vary its action to suit the changing circumstances of the bargaining process. If a union wants to take a different form of action that that which was proposed in its ballot order application it needs to go through the entire process from scratch.

If a union obtains approval by its members for the industrial action, then the union may engage in that specific action on the provision of three days notice to the employer (or such longer period that the tribunal deems appropriate). The union must engage in the action within a period of 30 days of the ballot being approved or lose the right to engage in the action.

As one can imagine, the process for seeking to engage in protected industrial action can be long and cumbersome.

Every step of the way an employer is entitled to resist the application for a ballot order and this can often result in an application process taking anywhere up to 20 working days to be resolved.

Of course during this delay the employer often actively engages its employees in an effort to get them to shut the union out or change their bargaining claims.

The new ‘good faith bargaining’ requirements introduced by the current Government will hopefully act as a curb on this sort of behaviour but the significant delay in being able to take industrial action significantly limits the ability of the union to use its economic power to reach agreement with a recalcitrant employer.

Nevertheless once a union has gone through the pre-requisites to seeking immunity from tort and engages in the industrial action the potential pain for a union does not end there.

There remain significant restrictions on the conduct of a union when it is engaged in industrial action. The union cannot be engaged or acting in concert with others (a provision designed to stop so called secondary boycotts).

The industrial action may also be terminated by the tribunal after it has commenced if one or more of the following reasons are cited:

• If it causes significant economic harm as determined by Fair Work Australia;
• If the action endangers life;
• If the responsible Government Minister (usually the Minister for Workplace Relations) issues a declaration or issues a direction to the parties;
• If the action causes significant harm to a third party;
• If Fair Work Australia determines that it is best that the parties ‘cool off’.

All of the reasons cited for the possible termination of industrial action, save for the requirement that it be terminated if it is endangering life, represents a fundamental intervention and limitation on the right of Unions to engage in industrial action.

The fact that a ‘third party’ unconnected to the bargaining process may intervene and seek orders to terminate the industrial action is a significant breach of international conventions as is the extraordinary power given to the responsible Minister to intervene in the strike generally and order it to stop. Clearly this is another area where the new law does not provide the same rights supposedly secured by ILO conventions and to which Australia is a signatory.

If a union manages to jump all these hurdles and concludes an agreement with an employer and ceases its industrial action, it is prevented from taking any form of industrial action for the life of the Agreement.

The life of an agreement can be anywhere up to four years and even if there are significant changes by an employer during the life of an agreement, the union remains prevented from taking industrial action during the life of the agreement.

An employer can potentially walk away from an agreement and a union is forced to either take legal action in the civil courts to enforce its terms (an often costly and lengthy process) or ignore the employer’s breaches.

The right for an employee to withdraw their labour in circumstances of fragrant breach by employers is not recognised by law.

If a union is bold enough to engage in ‘unprotected industrial’ action during the term of a concluded agreement it will likely be the subject of severe penalties.

The industrial umpire has no discretion other than to order industrial action to stop if it takes place during the life of a collective agreement. This lack of discretion for the industrial tribunal was first introduced by the conservative Government and has been retained by the new law.

Employers are entitled to apply to the courts for penalties and injunctions to stop the action from occurring. If a union breaches an order of a tribunal or court it is faced with significant penalties and common law damages. The penalties within the construction industry are even more barbaric with fines often doubled simply because you happen to be a construction worker.

The new law gives no ability for Unions to engage in social strikes in support of the Union agenda and this is something which again the ILO has previously frowned upon with the Committee of Experts finding ‘for the conventions to operate effectively, economic, social and sympathy strikes must be permitted and no penalty should apply. In other words Unions must be allowed to strike against government policies and in support of other employer’s striking workers. There can be no real freedom of association without that’.

The question remains as to whether unionists in Australia can exercise their rights to collective bargaining and freedom of association as enshrined by ILO conventions when such restrictions exist.

The ILO suggests that there can be no real freedom of association without the unrestricted right to strike and for Unionists in Australia that right remains severely curtailed despite the welcome improvements in the new legislation.

Unionists were right to celebrate the new law but the road to fully fledged union rights is a long and arduous one and it is a challenge that Australian unions will need to take on with renewed vigour following their successful campaign to overturn the previous conservative Government in 2008.

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