Typical media reactions against current workers’ strike actions hides the political reality analysed in detail on this blog that Labor’s Fair Work fails to ensure the right to strike, largely denies workers’ lawful industrial action, and so continues one of the worst repressive regimes against unions.
I will look at in 2010 some of the specifics of the legal restrictions as played out already against workers and their unions trying with industrial action to collectively bargain over their claims and to defend their social and economic interests.
In an election year, the right to strike can be debated and MPs reminded of the principles to advance workers’ rights.
At a number of different levels, industrial relations practioners and labour law academics are publishing their conclusion on the FWA.
In 2010 you can read one example from Dr Shae McCrystal, Faculty of law, University of Sydney.
All involved in industrial relations and MPs and our DPM should assess it.
Unfortunately, the so-called merit and evidence-based policy making of our government does not extend to
this issue of the right to strike.
The DPM’s DEWR obscures with untruths, under instruction, the repression and fails to respond on merit to reasonable arguments.
The point is the Fair Work Act breaches accepted principles for the exercise of the right to strike.
As Howard’s early Workplace Relations Act was in breach of the ILO minimum labour standards, so was WorkChoices and so is the Fair Work Act, as comprehensibly show by Shae McCrystal.
You can access her detailed points in the Australian Journal of Labour Law 23 ALJR no 1 2010. She concludes:
“…the Fair Work Act does not comply with the obligation to respect the right to strike as required by ILO Convention 87.
To the extent that the FW Act provides for the right to strike through the protected industrial action regime, the federal model of industrial relations complies with international standards. Participants in the federal system may take industrial action free from potential liability in support of negotiations for a single-enterprise agreement provided that the claims supported by that action are permitted under the FW Act.
However, this limited ‘right to strike’ fails to ensure that workers and their organisations can take industrial action in support of the full range of objectives considered to be legitimate trade union objectives, contains substantial restrictions on access to protected industrial action and may impose excessive and disproportionate penalties on parties who take illegitimate industrial action.
ILO Conventions 87 and 98 operate on certain assumptions about the role of the state in industrial relations.
The standards presuppose a commitment by ratifying nations to collectivism, collective bargaining and the social role of trade unions who act as agents of workers generally.
In this context, voluntary collective bargaining by workers’ organisations, supported by the right to strike, should be the predominant form under which working conditions are established, with only limited interference from the state to encourage the parties to bargain or to resolve intractable deadlocks.
During the term in office of the former Coalition government, the WR Act failed to comply with the two basic requirements underlying the ILO regulatory model: collectivism and voluntariness.
…The content, form and level of bargaining were strictly controlled.
The FW Act represents a substantial retreat from the hostility to collectivism which reached its apogee in 2006 with the Work Choices amendments to the WR Act.
However, there is no retreat from the ongoing failure of the federal industrial relations system to respect the autonomy of actors in collective bargaining.
The majority of non-compliance problems identified in this article stem from an underlying refusal to accept the obligation expressed in Art 4 of Convention 98 to promote voluntary collective bargaining, supported by the right to strike protected by Convention 87.
Acceptance of this obligation would require extension of the right to take protected industrial action to encompass the full range of action supported by ILO standards.
This would involve allowing employees and their organisations to take industrial action in support of a broader range of topics including payment for industrial action, right of entry, or even requirements for an employer to act in an environmentally responsible manner.
It would also encompass industrial action undertaken to support the desire of employees and their organisations to engage in collective bargaining at an industry level.
The obligation would not mean that employers would have to agree to these demands, but the principle of autonomy dictates that bargaining agendas be self determined.
In addition to a broadening of the scope of collective bargaining, acceptance of the principle of voluntary collective bargaining requires acceptance of the principle that while the state can intervene to encourage parties to reach agreement, it cannot impose obstacles which hinder the right to strike.
Any prerequisites to industrial action should be designed to suit the purpose for which they are instituted and must encourage the parties to voluntarily agree.
Ballots imposed to ascertain the will of the majority of members of an organisation before taking industrial action should not be designed to serve alternative agendas like policing bargaining behaviour or undermining the autonomy of employee organisations.
The restriction of the autonomy of the bargaining parties under the FW Act directly reflects the inability of the federal government to accept the logic of the right to strike with its concomitant potential for industrial disputation.
Commitment to a free market bargaining model based on the principles of freedom of association requires the concession that employee organisations must be able to exercise market power.
This concession would require the federal government to back away from its preferred level of agreement (single enterprise), from the restriction of subject matter of such agreements and allow the parties to negotiate these matters based on their relative bargaining strengths.
It is the failure of the system to fully embrace the voluntary and free market aspects of the ILO model that generates ongoing compliance difficulties concerning the right to strike.
The failures of compliance identified in this article cumulatively point to a failure in Australian labour relations to acknowledge the right to strike as a tool of bargaining in the context of a voluntary free market based system of collective bargaining.
The tool is not designed to be used as an instrument of policy or as a right conceded only in the context of an extremely limited bargaining scenario where outcomes conform to those considered appropriate by the state rather than those agreed between the parties.”
Labour Law
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