“Australia must pursue universality in labour law. Doing this effectively requires:

Expanded definitions of employers and employees;

Reforms to better capture indirect employment arrangements like labour hire and dependent contracting;

A firmer definition of casual work; and
Expanded National Employment Standards that create a set of inclusive minimum standards that protect all employees.

We have also provided recommendations on how our industrial relations system can be reformed to provide stronger legal pathways from insecure work to ongoing employment.

However, as I have said simply refining labour market regulation won’t limit the growth of insecure work.

To provide decent work for all, we also need to ensure that an effective safety net is in place for people who fall out of work and invest more in our workforce – especially the most disadvantaged.

We have called for a number of reforms aimed at achieving a more skilled workforce, including:

A broader focus on work-life transitions, rather than the narrow preoccupation with the transition between employment and unemployment that has given led to an emphasis on ‘Welfare-to-Work’ initiatives.

A commitment to lifelong learning, including a call for the ACTU to investigate learning accounts as a model for investing in the capability of workers over the lifetime.

Reform to Australia’s tax and transfers system to provide a stronger safety net by:

Addressing the inadequacy of the Newstart Allowance;

Simplifying income declaration systems;
and
Abolishing the Liquid Assets Waiting Period.
Changes to the way Job Services Australia interacts with forms of insecure work such as labour hire.

Read the whole speech here

http://www.actucongress.org.au/site/congressmedia/speeches-and-opinion/1623-address-by-brian-howe-address-to-actu-congress-2012

Wednesday, 16 May 2012
Secure Jobs. Better Future
Preamble
Despite strong and sustained economic growth, recent decades have seen a worrying and dramatic rise of insecure work in Australia.
Today, only about 60% of workers are in full-time or part-time ongoing employment; the rest – some 4 million workers – are engaged as casuals, on short-term contracts, in labour hire, or as independent contractors.
Insecure work leaves a large section of the workforce not sharing in our national economic prosperity. They have inferior rights, entitlements and job security to their counterparts in ongoing employment. It makes it tough for working families to plan for their future when they cannot rely on regular incomes, but have rising household costs and are shouldering more and more household debt.
The rise of insecure work in Australia is the result of a business model that shifts the risks from the employer to the employee. Australian unions do not believe a strong, prosperous economy must come at the expense of quality jobs, of respect for workers’ rights, and of workers exercising some control over their working lives.
Resolution
Congress welcomes the report of the Independent Inquiry into Insecure Work in Australia and thanks the Inquiry panel for their work.
The report we have heard today demonstrates that this issue is not confined to the margins of the Australian labour market. Insecure work can affect any worker – blue collar, white collar, private sector, public sector. It affects younger and older workers and, disproportionately, women, indigenous workers and workers from culturally and linguistically diverse backgrounds.
It affects the high skilled as well as the low skilled.
But there is no reason why we should accept that a modern economy must drive insecurity at work.
Congress commits to a properly resourced Secure Jobs. Better Future campaign.
Congress recommends that the report be properly considered with appropriate recommendations incorporated into a detailed campaign plan to be submitted for approval at the next meeting of ACTU Executive.
The campaign will work actively to diminish the incidence of insecure work in the Australian labour market and will be aimed at actively and effectively involving the ACTU, Trades and Labour Councils, National and State unions and community partners.
The campaign will be multi-layered and will involve workplace, industrial, political, and community strategies to tackle the issue. It will include a clear framework for legislative changes and will outline a high profile communications strategy.
We believe reliable workers should have jobs they and their families can rely on with:
 Fair and predictable pay and hours of work;
 A say about how, where, and when they work, and to be consulted about change;
 Access to important conditions like annual leave, paid sick leave, overtime, penalty rates and long service leave;
 Protection from unfair dismissal;
 Quality skills and training and career opportunities; and
 A healthy and safe work environment.
To achieve these aims, Congress determines, as part of the Secure Jobs. Better Future campaign, to pursue an industrial and legislative agenda that includes:
 Improved regulation of the labour market that provides all workers with a universal set of protections and entitlements;
 Reducing and removing the ability of employers to shift economic risk onto their workforce;
 Measures to provide better protections to workers employed indirectly through labour hire and agency arrangements, and eliminate disguised employment arrangements like sham contracting; and
 Measures that empower workers in insecure work to build a working life based on dignity, respect and fair recognition of their work.

This 85 page report is well worth reading and studying, but more importantly campaigning with unions for the implementation of its recommendations too detailed to record here but covers major changes to our Fair Work Act for secure work orders.

The resolution is:
Secure Jobs. Better Future
Preamble

Despite strong and sustained economic growth, recent decades have seen a worrying and dramatic rise of insecure work in Australia.

Today, only about 60% of workers are in full-time or part-time ongoing employment; the rest – some 4 million workers – are engaged as casuals, on short-term contracts, in labour hire, or as independent contractors.

Insecure work leaves a large section of the workforce not sharing in our national economic prosperity. They have inferior rights, entitlements and job security to their counterparts in ongoing employment.

It makes it tough for working families to plan for their future when they cannot rely on regular incomes, but have rising household costs and are shouldering more and more household debt.

The rise of insecure work in Australia is the result of a business model that shifts the risks from the employer to the employee.

Australian unions do not believe a strong, prosperous economy must come at the expense of quality jobs, of respect for workers’ rights, and of workers exercising some control over their working lives.

Resolution
Congress welcomes the report of the Independent Inquiry into Insecure Work in Australia and thanks the Inquiry panel for their work.

The report we have heard today demonstrates that this issue is not confined to the margins of the Australian labour market. Insecure work can affect any worker – blue collar, white collar, private sector, public sector. It affects younger and older workers and, disproportionately, women, indigenous workers and workers from culturally and linguistically diverse backgrounds.

It affects the high skilled as well as the low skilled.
But there is no reason why we should accept that a modern economy must drive insecurity at work.
Congress commits to a properly resourced Secure Jobs. Better Future campaign.

Congress recommends that the report be properly considered with appropriate recommendations incorporated into a detailed campaign plan to be submitted for approval at the next meeting of ACTU Executive.

The campaign will work actively to diminish the incidence of insecure work in the Australian labour market and will be aimed at actively and effectively involving the ACTU, Trades and Labour Councils, National and State unions and community partners.

The campaign will be multi-layered and will involve workplace, industrial, political, and community strategies to tackle the issue. It will include a clear framework for legislative changes and will outline a high profile communications strategy.

We believe reliable workers should have jobs they and their families can rely on with:

 Fair and predictable pay and hours of work;

 A say about how, where, and when they work, and to be consulted about change;

 Access to important conditions like annual leave, paid sick leave, overtime, penalty rates and long service leave;

 Protection from unfair dismissal;

 Quality skills and training and career opportunities; and

 A healthy and safe work environment.
To achieve these aims, Congress determines, as part of the Secure Jobs. Better Future campaign, to pursue an industrial and legislative agenda that includes:

 Improved regulation of the labour market that provides all workers with a universal set of protections and entitlements;

 Reducing and removing the ability of employers to shift economic risk onto their workforce;

 Measures to provide better protections to workers employed indirectly through labour hire and agency arrangements, and eliminate disguised employment arrangements like sham contracting; and

 Measures that empower workers in insecure work to build a working life based on dignity, respect and fair recognition of their work.

An Interview with Joe Burns, author of “Reviving the
Strike” (review this blog)
April 28th, 2012

by Camilo Viveiros
https://t.co/qoRke0ut

Introduction: Many in the Occupy movement have called for a general strike on May 1st but most Occupy activists aren’t involved in labor organizations or organized in their workplaces.

While General Assemblies may be somewhat effective institutions at reaching the agreement of assorted activists around future direct actions, workplace stoppages require the large scale participation of workers in decision-making structures.

The interview below gives some organizing advice for those who have called the general strike. I hope that this interview will inspire Occupy activists to consider the difficult work ahead that is needed to build democracy in the workplace. We are the 99%!

Camilo: You’ve written this very important book
“Reviving the Strike” that gives us a lot of insight about some of the challenges, but also the importance of strikes as a tactic.

Thank you for your work
promoting the increased use of the strike as a tool to use building working class power. In “Reviving the Strike” you argue that the labor movement must revive effective strikes based on the traditional tactics of labor– stopping production and workplace-based solidarity. As someone who sees the strike as a vital
tactic to achieve economic justice I want to ask you a few questions.

Right now Occupy and other activists across the country have been agitating for a general strike on May 1st.
Resolutions have been passed at General Assemblies around the country.

There are a lot of new activists that have joined the Occupy Movement, some never having had any organizing experience or labor organizing experience.

Could you share some of the examples of creative ways that newer
activists and established labor activists can think about this coming year, maybe toward next May 1st or toward the remote future of how people can embrace new creative strategies to organize toward strikes involving larger numbers of folks.

Joe Burns: First of all, I think the fact that people are talking about this strike and the general strike is a good thing because it starts raising people’s consciousness about where our real source of power is in society, which is ultimately working people have the power to stop production because working people are the
ones who produce things of value in society.

On the other hand, if you look back through history about how strikes happened, how in particular general strikes happened, what you’ll find is that they’re organized in the workplace by organizers organizing their
co-workers. And that’s really the key aspect here.

If you look at how most general strikes in the United
States have come about, it’s because there’s been
strike activity in the local community, people have
built bonds of solidarity. And then, let’s say one
Local goes out on strike, they put out an appeal for
other Locals to help them, and then eventually it
breaks out beyond the bounds of the dispute between
just them and their employer and becomes a generalized
dispute between all the workers in the city and the
employers in the city. So it really happens as part of
a process of solidarity being built step by step.

“It hasn’t really happened where people have put out a
general call saying let’s strike, let’s do a general
strike on this day. ”

It hasn’t really happened where people have put out a
general call saying let’s strike, let’s do a general
strike on this day.

One of the things that I focus on in my book, is the
need to refocus on the strike. And to do that, that
really takes workplace organizing in both union and
non-union shops, where people go in and do the hard
work of talking to their co-workers, forming an
organization, and ultimately walking out together.

I think it’s scary to do, to strike, to ask people in
these isolated workplaces to strike all by themselves
makes it very difficult.

“…people go in and do the hard work of talking to their
co-workers, forming an organization, and ultimately
walking out together”

Camilo: What do you think it would take to actually
organize, to bring back the capacity to have a general
strike in the United States?

Joe Burns: In order to have a general strike I think
we need to have a workers’ movement that’s based in the
workplace.

If you look at, in the early 1970′s there’s
a good book called Rebel Rank and File that a number of
folks edited and it’s got articles. It’s really about
how the generation of 60′s leftists, a lot of them went
back into the workplaces and did organizing, and that
in the early 70′s there were tons of Wildcat strikes
which aren’t authorized by the union leadership.

Some of them, like the Postal Strike of 1970 involved
200,000 postal workers striking against the federal
government, in an illegal strike. But that didn’t
happen just by itself, it happened because people went
in to their workplaces and organized it. So, how are
we going to get a general strike in this country? I
think it’s going to be because we redevelop a labor
movement or a broader workers’ movement that’s based on the strike.

I think the efforts of Occupy for the class-based sort of thinking will help in that.

Ultimately, though, I think we need at some point to
devote our attention to the workplace, because the
workplace is the site of where the strike and struggle
need to generate from.

Camilo: During the takeover of the capital building in
Wisconsin some folks speculated that what should have happened is that public sector workers who were under
attack should have gone on strike. But in some ways
public sector workers are even more restricted around
strike guidelines than private sector workers and so
they have less right to strike.

What are your thoughts
around public sector workers who are really bearing a
large brunt of the attack on labor over the last year,
and what would the challenges be to building the
solidarity necessary to consider strikes of public
sector workers?

Joe Burns: I think what you find studying labor
history is that even though strikes were illegal up
until 1970, Hawaii became the first state to authorize
a legal strike, regardless of that workers struck by
the hundreds of thousands, public sector workers in the
1960′s. And in fact the laws giving them the right to
strike were done after the fact, and they were only
passed because workers were striking anyway and
legislatures decided to set up an orderly procedure to
govern strikes.

So what you find is hundreds of thousands of teachers striking throughout the 1960′s, and that’s really how public employees built their
unions. And they did it in the face of injunctions, so
a judge may order them back to work and start jailing
leaders, but like in Washington state in a rural
community all the teachers showed up together, everyone
who was on strike, and told the judge to arrest them
all. And the judge backed down because it didn’t look
good.

So that’s really how we won our unions to begin with in
the public sector, in the 1960′s, so when you fast
forward to today and look at strikes in the public
sector, when you look at Wisconsin in particular,
clearly the Wisconsin teachers is what really kicked
off the whole Wisconsin battle.

They organized calling
in sick, and two-thirds of Madison teachers didn’t show
up to work and that’s what really kind of fueled the
beginning of the takeover of the capitol, along with
the grad students and so forth. So it was based on a
strike. Some people wanted that to expand into a
general strike, but that really wasn’t going to happen
unless the people most involved which were the public
employees, took the lead on that. And they chose, and
made a strategic decision after four days to go back to
work and fight by other means. I think that’s the
strategy that they wanted to do and that made sense for
them.

Camilo: With union density not at its peak what are
the some of the opportunities for non-union
organizations to use striking as a tactic? What are
some of the lessons we can learn from the Wildcat
strikes of the 70′s, and how can we have enough
flexibility to try to go beyond the stranglehold that
Labor law has on workers’ organizations right now?

Joe Burns: I think there’s been a lot of good movement
in recent years to look at different forms of worker
organization beyond the traditional unions. So you’ve
had workers’ centers, you’ve had various alternative
unions, the IWW and so forth, all looking at how do you
organize particular groups of workers. The question
that all of them eventually run into is, you can have
your alternative form of organization but ultimately
it’s a question of power, and do you have the power to
improve workers’ lives. And to do that traditionally,
that’s been at the workplace the ability to strike or
otherwise financially harm an employer.

So I think part of what moving forward we’ll see with the revival of the workers’ movement in this country is a lot of coming together of these different forms of
organizations, embracing tactics such as the strike.

And really some of them are the best situated to do it,
because they don’t have the huge treasuries and
buildings and conservative officials that you find in a
lot of unions.

“…ultimately it’s a question of power, and do you have
the power to improve workers’ lives.”

Camilo: So, what would your advice be to a non-union
Occupy activist who maybe voted for a general strike
during a general assembly, or who wants to see a
general strike come to fruition at some point, what
would your suggestions be for those activists that are
out there who are seeing the need for this tactic to be
embraced.

Joe Burns: I think go into your workplace. The strike
and strike activity needs to be rooted in the
workplaces, and if it’s based on people outside of the
workplace calling on people to engage in strike
activity, that’s not going to work.

Not saying you
need to just bury your head in some local place, you
need to have a broader perspective and broader
activism, but if you really want to see a general
strike, go out and organize workers, your co-workers or
however you want to do it to build forms of
organization in the workplace.

Joe Burns is staff attorney and negotiator, with the
Association of Flight Attendants/ Communications
Workers of America and author of Reviving the Strike.

http://www.revivingthestrike.org

Camilo Viveiros has been a multi-racial economic
justice organizer for over 20 years. He has developed
organizing trainings for the Occupy movement
www.popularassembly.org and does campaign and
leadership development, popular education, strategy and
direct action trainings for grassroots groups.
401-338-1665 camilo@activism2organizing.org

___________________________________________

Portside aims to provide material of interest to people
on the left that will help them to interpret the world
and to change it.

Submit via email: portside@portside.org

by Humphrey McQueen

The book should be compulsory reading for new and old union officers and organisers; it will certainly challenge them to decide whether they are workers’ representatives or ‘workplace relations practitioners’.
Howard Guille, former secretary of the National Tertiary Education Union.

McQueen has written a remarkable book rich in stories and case studies. Therefore, a review is an incredible challenge; it is easier to recommend reading.
Jan Cremers, University of Amsterdam, CLR-News

The latest offering by radical historian Humphrey McQueen is a cracking yarn. Despite McQueen’s stature as an historian, this is anything but a sterile academic work. The strength of this history is that McQueen takes a side, and you can’t miss it! Throughout, there is the unmistakable clarity that there are bosses and there are workers.
Alison Thorne, Freedom Socialist Organiser

McQueen holds history – in this case BLF history – up as a mirror in which we can reflect on our present situation, and in which we can see an alternative future. We Built This Country is a text with which readers can engage on numerous levels – it will be a welcome addition and enhancement to what continues to be a proud BLF tradition.
Aidan Moore, former builders’ labourer, The Recorder

GOULD’S BOOK ARCADE
32 KING ST, NEWTOWN
02 9519 8947
THURSDAY, 19 APRIL 7pm for 7.30

We Built This Country, Ginninderra Press, $30
Companion volume to Framework of Flesh, Builders’ Labourers battle for health and safety (Ginninderra Press, 2009) $30.

(The following is from the Journal of Political Economy no 56 p68 www.jape.org. But this key Howard repression of strikes remains in 2012 in the Fair Work Act and hence I only add in the ALP government. Unions still campaign for the removal of these penal powers against strikes.)

‘We won’t remove the right to strike’ claimed a government WorkChoices advertisement. But with WorkChoices and still with the Fair Work Act the legal right to strike has almost gone. Organising strike action legally was risky under
the former Workplace Relations Act (1996), the Trade Practices Act (1974) and the common law of torts. In practical terms it is now much more difficult. This article explores the implications of the unique WorkChoices scheme for legally curtailing workplace conflict by restricting further any lawful right to strike, arguably to the point of suppression.

In an era of the lowest working days lost for 45 years, strikes are not a public or industrial relations problem. Only 241,900 working days were lost in 2004-5, and in 2012 still very low in stark contrast with the strike waves of 1973-4 of 5,426,200 days lost. The government strategy to legally suppress strikes is nevertheless one
feature of the WorkChoices industrial relations regime that is retained by the Rudd and now Gillard government.

From the Right to Strike to the Suppression of Strikes

In 1993, the Keating government introduced a legal right to strike, called protected industrial action. Employees in enterprise bargaining industrial action maintained protection from dismissal. Unions had the lawful ability to organise and, as a last resort, to take strike action during enterprise bargaining without the risk of injunctions, fines and common law tort damages. Protected action applied based on minimum International Labour Organisation (ILO) Conventions on the freedom of association, and the right to organise and bargain collectively.

The Howard government’s Workplace Relations Act (1996) began the process of circumscribing the right to take protected action. The last ten years have seen the right to strike judicially narrowed and the scope of protection limited. Legal sanctions available to employers were increasingly used to secure orders and injunctions to halt strikes and to fine and make unions civilly liable for damages under common law. The International Centre for Trade Union Rights (ICTUR) exposed that Australia’s Workplace Relations Act (1996) failed to comply with ILO standards for the protection of the right to strike. The ILO stated in 1983:

“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”.

In 2005, with Senate control, the government signalled its intention to move even more strongly against the interests of organised labour by targeting the building and construction unions. The right to strike for building and construction workers was outlawed in the Building and Construction Industry Improvement Act (2005). This was rushed through in August 2005 and applied retrospectively to penalize unions’ campaigns. The new Australian Building and Construction Commission with wide-ranging powers is ‘investigating’ building unionists involved in so-called ‘unlawful industrial action’. Building workers’ basic civil rights to silence and not to incriminate themselves have been removed with the threat of six months jail for noncooperation (Roberts 2005). A CFMEU newspaper advertisement asked

“In what country can you be interrogated about a routine union meeting, and jailed if you don’t comply?” (November 28, 2005).

The International Labour Organisation (2005) upheld an ACTU complaint that the Building and Construction Industry Improvement Act (2005) breaches
ILO Conventions on union rights to freely associate and collectively bargain. The current Gillard 2012 amendments do not remove the anti-union powers.

Scheme Controlling Strikes Changed

In relation to the right to strike, the key features of the new WorkChoices
industrial relations arrangements retained by PM’s Rudd and Gillard are:
• pattern bargaining strikes are made unlawful;
• new compulsory secret ballots are preconditions for protected action;
• the AIRC has stronger powers to terminate protected action;
• the Minister has new unprecedented powers to halt strikes;
• strikes are outlawed during the life of an agreement;
• corporations have unlimited power for greenfield projects; and
• green bans and legitimate political protests are outlawed.

WorkChoices is a prescriptive ‘command and control’ penal model, designed to legally curtail so-called ‘unlawful’ industrial action. State power institutes a shift against collective union organising, creating a stronger corporate bargaining position. The Australian Industrial Relations Commission’s (AIRC – now Fair Work Australia) dispute settling role is transformed into ‘policing’ functions and the Federal Court’s legal sanctions are strengthened against industrial action. Without the practical and legal ability to strike, union collective bargaining is severely undermined.

Industrial Action Becomes Unlawful

The Workplace Relations Act (1996) created a dichotomy of industrial action that was protected and industrial action that was not protected. Protected action was available after the union notified an employer of a bargaining period for an enterprise agreement. Within this period, after three days’ notice the union could take strike action to press the claims without being penalised. Such protection did not extend to industrial action outside of enterprise bargaining, such as in response to grievances against management but, depending on the circumstances, not all unprotected industrial action was judged by the AIRC as illegitimate and consequently judged unlawful by the Federal Court. Some scope for industrial action existed and, rather than penalise unionists, the employer
often settled the dispute, with the AIRC’s assistance.

The WorkChoices/Fair Work Act scheme severely narrows the scope of protected action. The union’s capacity to undertake protected action is constrained.

Any strike outside of protected action is automatically unlawful, able to be stopped and subject to penalties. This has the potential to delegitimize and even criminalize previously legitimate industrial action.

The following six provisions are the levers that WC/FWA uses to exclude unions from taking strike action.

(1) New Penal Powers to Halt Strikes
First, the AIRC is now compelled to stop all strikes that are not protected action. WorkChoices removes the AIRC’s discretion to allow unprotected industrial action to occur by changing the provision that states that the AIRC ‘may’ stop industrial action that is not protected to ‘must’ stop industrial action that is not protected. Such compulsion overturns a decade of AIRC and judicial decisions, whereby a strike that was not protected was not necessarily halted by the AIRC and made unlawful by the Federal Court (Creighton and Stewart 2005). Now, irrespective of the specific circumstances of industrial action including
considerations of fairness and conciliation of grievances, the AIRC ‘must’ stop all pending or probable unprotected industrial action.

(2) Protected Action for Pattern or Industry Bargaining Outlawed
Under FairWork Act collective industry-wide industrial action is still prohibited and only action against a single business is permitted. This means that pattern or industry bargaining strikes, which serve to support claims made on more than one employer or on an industry, are made unlawful. New prescriptive instructions compel the AIRC to halt pattern bargaining. The shift in the balance of power to employers is profound, as pattern or industry bargaining has existed since the beginnings of unionism and has been widely accepted as pragmatic by the community and industrial institutions for lifting industry-wide working conditions. For national unions to be effective, workers have combined collectively with other workers for common industry interests. Indeed, it is hard to conceive of an effective industrial relations system that does not have elements of pattern or industry bargaining. For example, research by the Australian Centre for Industrial Relations Research and Training (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.’

Under WorkChoices Australia is one of the few countries to directly outlaw pattern bargaining, in contravention of ILO standards on labour law. The ILO has previously criticised Australia for attempting to move down this path, stating that:
‘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 (1998).

Indeed, the ILO found in relation to multi-employer agreements 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 1999:205).

By outlawing union pattern bargaining, employers have a new weapon aimed at unions in coming campaign rounds. In contrast, employers in national and industry associations are free to act together to pursue their interests. Employers can press individual contracts Australian Workplace Agreements (AWAs)(now abolished under the Fair Work Act) with identical conditions of employment in concert across their industries: this is not unlawful under WorkChoices.

(3) Compulsory Secret Ballots
WorkChoices introduces and Fair Work Act retains compulsory secret ballots before protected action can begin. Since 1996, three days notice of protected action gave some scope for unions to organise for action within enterprise bargaining. A postal ballot was voluntary and in practice not often used.

For protected strikes, it is now compulsory for unions and workers to comply with 45 sections of complex process requirements. The AIRC polices the process and the Australian Electoral Commission or a private agency conducts the ballot. 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. The traditional short ‘rolling stoppages’ tactically organised on the job will be impossible. If unions do manage to get through the 45 sections, longer stoppages are likely with an escalation of tension, an all-out approach to dispute resolution. The ILO accepts balloting before strikes, but not in a form that denies effective strike organisation (Novitz, 2003).

In 2004, Employment and Workplace Relations Minister Andrews argued that compulsory secret ballots:
‘were a basic issue of workplace democracy. We think it’s something that is justifiable because people ought to be able to have a say in matters about industrial action. They ought to be able to have a clear say in matters that affect them as employees.
But let me go a step further – we won’t be stripping away the
right to strike (The Australian 29/11/2004)’.

Minister Andrews did not cite any abuses. It is a conservative myth that union leaders force workers to strike (Hyman 1986). The contrast in WorkChoices with employer lockouts is also significant. No ballot requirement is made for employers legally locking out their workforce in bargaining for collective or individual agreements – no balloting of management, directors or shareholders.

Stewart (2004) has argued that the AIRC system has been excessively legalistic. Wide scope exists for legal challenges by employers to test whether unions have complied with appropriate processes. Judicial determinations in the past have found minor technical breaches of process in the conduct of both employees and employers that made their actions invalid. It can be predicted that further legal challenges to ballot requirements will be made. Under WorkChoices powerful legal firms hired by employer groups will more easily halt and penalise strikes.

Stewart (2005) sees WorkChoices as much more legally complex. Strict legalism, divorced from industrial relations fairness, will be a dominant priority for enforcing employer rights over the workers’ rights to collectively organise and strike.

(4) AIRC Powers to Suspend or Terminate Protected Action

Even if a valid vote authorises industrial action and union action is under
way, the AIRC has stronger powers to suspend or terminate it.
Termination can occur if the union is:
• ‘failing to genuinely try to reach agreement’;
• ‘endangering life, personal safety or health’ or ‘significant damage
to an important part of the economy’;
• taking industrial action with ‘employees who are not members’ and
• in a ‘demarcation dispute’;
• and for ‘cooling off’ orders to assist the employer’s negotiating tactics.

WorkChoices and still in FWA gives a significant new right to halt protected action to any third party affected by industrial action (i.e. not the employer and
employees in dispute). When there is significant harm to any third person
or action adversely affecting an employer, the AIRC must suspend the bargaining period. Industrial action is at risk where third parties are ‘particularly vulnerable’, or the conduct ‘threatens to damage the viability of a business’, ‘disrupt the supply of goods or services to a business’, ‘reduce the person’s capacity to fulfil a contractual obligation’ and ‘cause other economic loss’.
By definition, a strike affects other businesses and persons. As O’Neil (2004:11) has said about an earlier version of this Bill defeated in the Senate: ‘It is difficult to imagine that protected industrial action will not result in some economic damage to third parties and there is at the least the potential for the scope of the immunity offered under protected action to be narrowed.’ Any business affected can apply to halt protected action, such as car companies affected by strikes in component suppliers. Patients, students and any persons affected by public sector bargaining can apply. The ACTU (2004) said this was ’a spiteful proposal of the government’s repression of industrial action for the caring professions, nurses, teachers and others that portrays them as wanting to hurt students and patients.’

(5) Ministerial Power to Intervene
Two extraordinary Ministerial powers are introduced to stop strikes.
(a) Industrial Action Prohibited Over Claims Banned from Agreements
The Minister is given unprecedented power to ban union claims.
Protected action is not allowed if a union log of claims contains
‘prohibited content.’ The FWA did abolish the ‘prohibited content’ restrictions, but still FWA does not allow the parties .e.g. to agree on bargaining fees from non-unionists. Restrictions of agreeing only on ‘matters pertaining to the employment relationship’ take away the freedom of employers and employees to freely choose what they have in their enterprise agreement.

(b) Ministerial Declaration Terminates Bargaining Periods

WorkChoices further mandates executive power to the Minister to declare a bargaining period terminated to stop industrial action. The AIRC formerly heard argument, and on its merits, decided whether or not to terminate the bargaining period.

The Minister can now simply form an opinion on what is likely ‘to cause significant damage to an important part of the Australian economy’. This may not be limited to the ‘essential services’ of the army, police and senior public servants. The Minister, for example, could assist the Mines and Metals Association by stopping strikes that affect large corporations’ exports to China. Political intervention by the Minister into disputes is likely in these circumstances. The Gillard government did not use this in the Qantas dispute, but Abbott did say he would use this penal power.

(6) Prohibiting Strikes During the Term of an Agreement.
WorkChoices prohibits industrial action for all reasons during the term of an agreement. Minister Andrews has responded to employer lobbying by reversing the Federal Court decisions that stated that a union was not always prohibited from taking protected action during the agreement’s life. O’Neil (2004) argued that ‘the notion that industrial issues are closed for the life of a particular agreement is at odds with the fact that businesses are at liberty to significantly restructure the business during the course of the agreement, which will be responded to by claims from employees and their organisations.’ Total prohibition of strikes during the agreement is questionable in international labour law. The ILO allows a civic right to strike in political protest during the agreement (White 2005a). The right to strike, as a human right, cannot be totally
prohibited (Ewing 2004).

More Circumstances Removing the Right to Strike

WorkChoices and the Fair Work Act proscribes union strike action on important issues that are not directly industrial. ‘Green bans’ supporting environmental action are outlawed, even where there is support from community and environmental groups. Political protests with industrial action, although a legitimate civil liberty in a democracy, are made unlawful (White 2005a). Occupational health and safety action is legally made more difficult with a subtle legal change putting the onus on the employee to prove the health and safety risk.

Finally, unions under the Workplace Relations Act (1996) had immunity for 72 hours from common law tort while the AIRC conciliated the dispute, but this immunity is now repealed. No justification is given.

Nineteenth century ‘master and servant’ common law doctrines, where strikes by definition are tortious, are now immediately available. For over 70 years the industrial relations practice was to settle the claims, without recourse to the common law of tort. Now automatic common law injunctions apply. So more injunctions are likely, such as were used in the (in)famous Dollar Sweets case (Costello 1988), and damages that can cripple a union, as in the Pilots case with $6.48 million.

Conclusion
The right to strike, in practical terms, is extinguished by WorkChoices nd the fair Work Act. Workers legitimately taking industrial action may be liable to be ordered back to work, dismissed, fined, sued and even criminalised. This is a clear break with the century-old recognition within the Australian industrial relations system of workers’ collective rights to exert economic pressure through industrial action in order to balance the unequal bargaining powers between an employer and an employee (Cameron, 1970). Employees on collective union agreements may go into their next negotiating rounds without a credible threat for lawful industrial action and effective bargaining. Employers will know unions have few means to implement pressure through industrial action.

With higher penalties to curtail prospective strike action, the new scheme moves away from repressive tolerance towards the legal suppression of strikes. These changes herald an unprecedented institutionalised shift to greater corporate power and State intervention against unions.

Past suppression of strikes, however, has not worked (Hutson, 1983).

Powerful global corporations striving for profits will continue restructuring and intensify their anti-union campaigns by using the new provisions against organized labour. In this context the government’s ‘law and order at work’ strategy is designed to combat the resistance of so-perceived union ‘militants’.

Then ACTU Secretary Combet (now Minister) in 2005 anticipated that unions will not pay the fines and some union leaders could go to gaol. (This did not happen). It is pertinent to recall that in the 1969 unions defeated the then penal powers with national protest actions after the jailing of union leader Clarrie O’Shea. After there was recognition that penal sanctions were not justified.

Arguments for a legal right to strike were developed (Green 1990).

A similar challenge is for unions now to resist these new penal powers, as they do not have
legitimacy.

One part of the campaign for labour law reforms will have to be to protect the human right to strike.

Chris White, former Secretary of the United Trades and Labor Council
of South Australia, is now living in Darwin.

References omitted here but are available from chrisdwhite@bigpond.com

Section only on the Restrictions on taking protected industrial action – one key reform for the Gillard government and Minister Bill Shorten

“The UN and ILO recognise the freedom to strike as a fundamental human right. It is particularly
important in the context of collective bargaining.

However, Australia continues to unduly restrict the right of employees to take industrial action in support of bargaining claims.

First, as discussed above, certain work-related claims are prohibited by the law.

Second, the law prohibits industrial action in support of ‘pattern’ claims, even though a key aspiration of workers and unions, in the interests of fairness, is to secure equal pay for equal work within a single industry or
occupations.

Third, while unions generally support the concept that industrial action should only be taken if a majority of affected union members support it, the law continues to allow employers to interfere in the ballot of members, despite this being a matter between the union and its members.

Fourth, the detailed and bureaucratic procedures around the conduct of the ballot operate in practice to frustrate the speedy taking of protected action (and are exploited by employers for this reason).

Fifth, the imposition of a quorum for voting (when no such quorum applies when employees approve the making of an enterprise agreement) is also used to frustrate the taking of industrial action, especially in businesses with employees working at remote sites, or who do not speak English well.

Finally, and importantly, the Act continues the Work Choices era rules which permit protected
industrial action to be suspended or terminated almost at the election of the employer.

First, an employer can ask the Minister to terminate protected action; although this has never happened, it is too oppressive a power for the Minister to have in the first place.

Second, a large employer can take action to deliberately harm the economy, or endanger lives; FWA is then compelled to stop workers’
action. This was seen most recently in the Qantas dispute.

Finally, FWA must suspend protected action that is causing significant harm to the employer’s customers or suppliers; this provision can
almost always be invoked by large businesses.

These limitations on the right to strike in support of legitimate bargaining claims cannot be justified.

They contravene international law and ILO rules and violate the fundamental human rights of
workers to strike.

As such, they are inconsistent with section 3(a) of the Act, which expresses an
intention to comply with international law.

They should be significantly modified or removed.”

by Len Cooper
(Please distribute. Make your contributions to education for the Right to Strike Campaign,)

“It is not well understood in Australia, but working people are denied the right to strike almost entirely.

We are within a hairs breath of being denied the right to strike all together.

The legal ban on the right to strike is reinforced in law by large fines against individual workers and their union, plus the capacity to be sued for employer financial losses.

The only time that any semblance of the right to strike exists is during bargaining for a contract with the employer. However, even then it is a very qualified right to strike.

*It can only be exercised when there is no agreement in place or when an old contract expires

*It can only be exercised after a ballot conducted by the authorities; not by union members.

*The only strikes and other industrial action permitted is action which has been listed and voted upon in the ballot. (Little or no flexibility.)

• Unless workers use all of the forms of action voted on in the ballot, within the first 30 days, they are barred from using those particular forms of action in the bargaining period.

• Before the strikes and other industrial action can be used workers, through their union, must give the employer 3 clear working days notice of the action so that the employer can take action to mitigate against the impact of the strikes and other industrial action.

• In the notification, 3 days before each action, the union must tell the employer what action is being taken, what work places will be involved in the action, and enough additional information to enable the employer to take offsetting actions to mitigate against the effects of the industrial action.

• If all else fails for the employer, then a “third party” can intervene (e.g. an employer, a member of the public, the minister) to make application to terminate the industrial action (if it is being effective). We have seen the impact of this part of the act in the Nurses dispute, in the Qantas dispute, in the Vic Public Sector dispute and so on.

It can be seen that in this situation the next step will be to remove even that very limited and very truncated right to strike all together.

Of course we also know that the right of workers to take solidarity action, and to strike in support of a political and social issue, is in effect banned. A union’s right of entry is strictly limited, and the issues one can negotiate with an employer are also limited by law.

What is more, despite the history of the Industrial Relations Commission rarely interfering with the so-called right of the employer to organise their business as they wish, the law puts major constraints on Fair Work Australia which prevents it deciding in workers favour on many issues.

The employer has the right to hire and fire, the right to invest or not invest, the right to lockout workers, the right to contract out and off shore, the right to agree or not agree, the right to use 3rd parties to attack picket lines to break a strike, and so on.

Workers are extremely unequal before the law.

The only thing, in the final analysis that draws a line, between begging from the boss or bargaining/negotiating with the boss, is the right to withdraw ones labour.

The only thing that ultimately delivers workers from slave–like conditions is the right to strike.

Neither major political party in Australia supports the right of workers to strike. The Greens support the right to strike. Bob Katter’s party supports the right to strike. The United Nations through the International Labour Organisation (ILO) supports the right to strike, but the so called Labor Government does not support the right to strike.

Many prominent right wingers in Australia have cried crocodile tears over the denial of workers’ right to strike in what they would call totalitarian countries; they don’t support the right to strike in Australia.

It is even more remarkable is it not that the peak council of the union movement in Australia the ACTU, is virtually silent on the issue and have been so for many years.

The issue ,the right to strike, to assemble, to picket, to take solidarity action, is one of the most fundamental of issues but it is about to become even more fundamental for the well being and future of the overwhelming majority of the Australian people.

I wouldn’t like to make a quick examination of the situation faced and likely to be faced by workers and their unions in Australia and across the world

Global capitalism is facing what could be its’ worst and longest economic and social crisis in its history. Since the 1970’s it has attempted to artificially boost purchasing power by massive borrowing and debt. Clearly there is a limit to this as is indicated by the situation in Greece, Europe, the United States, and other places. What is more to aim at solving the debt crisis, the authorities are going to worsen the economic crisis by savage cuts in expenditure. The burden of these cuts will be borne by the poor, the disadvantaged and the working class at least. This in its turn will drive and is driving the social crisis.

The so-called “actions to address the root causes of the crisis” have been nothing but futile attempts to conceal the progressive decay of an economic system that thrives on the private appropriation of massive profits by the few while the great majority and more and more people across the globe suffer from untold poverty and misery.

Worse, efforts to address the crisis, in particular the use of trillions of dollars in taxpayers’ money to bail out the biggest banks and corporations from the crisis that they themselves created, have only further stoked up the burgeoning debts and deficits.

But all this comes at the expense of the people who face deep austerity measures including tax hikes, depressed wages, cutbacks on pensions and social benefits, reduced social services and increased fees, and declining public sector employment, among others. Even where these things, or some of them, aren’t yet apparent in Australia they are washing towards us.

What Do We Face?

∗ a huge growth in unemployment and under employment in the world,

∗ a massive proportion of workers are now in insecure, precarious employment (casual, sham contracting, labour hire, cash in hand), or in jobs threatened by the economic,

∗ a huge growth in the international “reserve army ”of unemployed across the globe being used by employers as cheap ,super exploited labour .The United Nations puts the figure at over 40 million displaced people in the world (refugees, asylum seekers, the homeless, etc),

∗ living costs are rising, there obviously are no price controls on products and services only controls on the price of the labour power; the sale of a worker’s capacity to work. This obviously leads to the reduction in real wages for more and more workers in Australia,

∗ unfair dismissal proceedings beyond conciliation, are outside the financial capacity of many workers in Australia. Some workers don’t have access to unfair dismissal proceedings,

∗ many workers remain on “WorkChoices” individual contracts until at least late 2012, early 2013. They are excluded from the collective protection of their workmates,

∗ the employers are demanding restoration of individual contract laws, strike action to be made even more difficult or completely impossible, the removal of access to unfair dismissal proceedings, the banning of more issues from bargaining, no right of entry and so on,

∗ the police force, and the paramilitary are being reoriented/reorganised to take a more aggressive stance on picket lines and other public demonstrations,

∗ after over 40 years of neo-liberalism working class solidarity has been smashed or seriously weakened and needs to be rebuilt and quickly.

If these trends continue, and it is likely they will, then the unions will become more ineffective and more irrelevant and the working people will be fearfully exposed. In many respects that is already happening (off shoring, nurses, Qantas etc).

The right and capacity to strike etc. will be fundamental to fighting back and fighting out of the worsening situation facing the working people in Australia.

How can we win those rights?

By building a mass movement that changes the political climate in this country as a first step.

I think the unions should form a continuing coalition with community organisations and prominent individuals to develop and campaign around a “common good programme” which includes the right to strike and other worker and community rights

We should build an organisation that eventually spreads across suburbs and regions and into marginal electorates to put the common good programme on the national political agenda, a programme independent from the Labor party and other parties, but one that has the capacity to unite over 90% of the people. The capacity is to become a real force.

In my view the right to strike will most likely only be won by striking.

It will take at least a number of unions in some key industries to take action simultaneously and cooperatively and with widespread support in the community.

Again in my view that is the task ahead and given the anti worker political direction that Australia is taking and likely to continue to take that also means the task has some urgency.”

LEN COOPER
President CWU Communications Division
Branch Secretary CWU Comm Div (T&S) Vic

The National Right to Strike Campaign.

See earlier posts on this blog.

1. Amend the Fair Work Act to have a real right to strike.

2. Amend the Fair Work Act to restrict casual and other forms of precarious work to a limited period. Provide the requirement for on-going work, more secure contracts of employment. Fair Work Australia is to have the power and discretion to conciliate and arbitrate the transition to the more secure employment contracts.

1. The right to strike

I submit the lawful strike is essential for collective bargaining. WorkChoices’ repressive provisions with unnecessary and unfair sanctions against industrial action were retained in the Fair Work Act and all have to be repealed for effective collective bargaining system.

Only with employees’ ability to bargain with protected action without being ordered back to work and suffering penalties can employees and their unions be able to respond to the dire precarious work of continuing capitalist labour relations.

The international capitalist crisis daily worsens putting more pressure on business to move to precarious and exploitative work. In response, unions have the Secure Jobs campaign.

What is essential is for employees to have the FWA amended to protect the right to strike in order to balance the more powerful corporate and government forces.

I have written on my recommendations for a right to strike. I reference articles on the arguments for amendments to the Fair Work Act to protect the right to strike.

I argue for the fire walling of industrial action for protection for employees and their unions so that sanctions are removed.

I argue such an amendment is vital for employees in all the forms of non-standard work.

I urge as necessary the repeal of the Australian Building and Construction Improvement Act, and the ABCC functions and powers and not replace it with the current amendments before Parliament that have no merit.

All of the existing provisions from the earlier Workplace Relations Act and Work Choices still in the current repressive regime against strikes are to be deleted, as well as those in other laws such as the Trade Practices Act and the Crimes Act.

Instead, a broad legal protection for all forms of industrial action is inserted.

At a minimum, commonly accepted ILO principles as required protecting the right to strike are to be implemented. The history of such ILO principles and their non-application by Australia is well known in the industrial relations and labour law community.

Furthermore, as a result to the Qantas lockout, the employer is to be denied this bargaining weapon of the lockout and the provisions in FWA deleted.

Much criticism has occurred about the failure of the FWA to have an effective right to strike by industrial relations specialists, labour law academics, the ACTU and unions. In particular, see the critical analysis in Shae McCrystal’s book ‘The Right to Strike in Australia’. I recommend Professor Keith Ewing’s research on the right to strike and Tania Novitz on the ILO’s protection for the right to strike.

Fire walling the right to strike is necessary for parliament to accept as essential for workers to have some power in this capitalist crisis and to assist strategies for secure jobs.

2. Job Security in the Fair Work Act

The overall merit evidence from employees’ adverse experiences in precarious work and the unjust impact socially in the Australian community requires Fair Work Act amendments for job security. Here are key recommendations.

2.1 One amendment is to clearly restrict casual employment to only short periods, such as 4 hours daily and no more than fortnightly.

Then a provision that compels employers to move to on-going and more permanent employment and allows employees the transition from existing casualisation to these more permanent on-going employment contracts.

Such a provision has bargaining rights for precarious workers to change to secure employment with the terms to be negotiated and agreed. The clear right exists when not being able to reach an agreement for the employee(s) to access conciliation and arbitration from FWA to gain orders for process steps for more permanent work.

The same applies to ending many short-term contracts. After two short term contracts, then the employer is required to move to more permanent, on-going contracts.

Special attention is to support any employee with service e.g. more than seven years who is to be on a permanent contract. As well, an existing employee with 10 years before retirement is to be on a permanent contract. Employees in other non-standard employment sectors are to be protected such as in the disability sector.

2.2 The next new section is to ensure that labour-hire contract provisions are not attractive
to employers for lowering costs. The aim is have protections dealing with precarious work in the labour-hire industry. Such provisions are to ensure the same wages and conditions
in the user firm in similar work. Employees must be hired permanently for not less
than two years. There is a formal written contract with the same rate and benefits. The
worker may join the user firm’s union. Labour-hire is to be implemented generally for
short-term, supplementary and substitute positions. Provisions for transition and
compliance need to be put in place.

2.3 Strengthening enforcement provisions by employees and unions to ensure that employers pay legal wages and comply with all employment conditions of the contracts of employment, with speedy measures for exploited workers to recover wages. Increased penalties and damages against non-complying employers.

2.4 A provision that deems for compliance that legal minimums exist in contracts of employment so that those entitlements can be enforced even if there is no evidence of a written contract of employment.

2.5 Amend the unfair dismissal section so that the right applies to all employees, irrespective of the employee’s status or contract of employment or the size of the employer’s workforce. The big lie that employers may not employ was made up by Ian Hanke Peter Reith’s press secretary and is repeated by Liberals and Nationals ad nauseum in the media, but is to be rejected. Precarious workers ‘dismissed’ ought to have the lawful right to argue their case about why they were unreasonably dismissed before a user friendly FWA conciliator then arbitrator for reinstatement.

2.6 I urge strengthened redundancy provisions in a new minimum entitlement that has a provision for three months notice and one month’s pay for each year of service for redundant employees. Such a job security measure as a national entitlement deters employers from making employees redundant and assists redundant employees in this recessionary period.

2.7 A specific process provision for precarious workers with non-standard work arrangements to have the legal right to union representation and to be able to organise in unions.

I support the ACTU campaign for Secure Jobs.

I attach reference articles. I attach a brochure from the National Right to Strike campaign to have the FWA ILO compliant.

Insecure work issues in Australia are similar to those overseas. I urge investigation of other countries attempts to provide greater protection for their employees. As well, I recommend China’s labour relations and laws grappling with insecure work.

I have an arts/law degree from the University of Adelaide. I worked in SA for the AWU, the LHMU and then was elected as Assistant Secretary and later Secretary of the UTLC of SA. I then in Canberra worked for ASMOF and the NTEU and at the ANU teaching in Politics.

I have posts on the right to strike on my blog http://chriswhiteonline.org

I now live in Darwin and am a Senior Research Fellow at The Northern Institute Charles Darwin University.

References
Cameron, C. (1970) ‘Industrial protest: the Right to Strike’ University of Adelaide, WEA ‘Social order and the right to dissent’ 27/11/1970. (Australian Parliamentary Library).
Ewing, K. (2004) ‘Laws Against Strikes Revisited’, in Barnard C, Deakin S and Morris G editors ‘The Future of Labour Law’ (Hart Publishing, Oxford, 2004).
Ewing, K. (2008) ‘Restoring rights at work Lessons from the UK.’ Professor of Law, Kings College London (Published 10.11.08 by Catalyst http://www.catalyst.org.au)
Glasbeek, H. (2009) ‘Rudderless in a Sea of Choices: The Defeat of Your Rights At Work—Analysis and a Possible Response’ Professor Emeritus and Senior Scholar Osgoode Hall Law School, York University,Toronto and Visiting Professorial Fellow, Victoria University, Melbourne. Dissent Autumn/Winter 2009, p33 and posted http://chriswhiteonline.org
Peetz, D. (2005) 151 Industrial Relations and Labour Law Academics Senate WorkChoices No 175. http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/submissions/sublist
Roberts, T. (2005) ‘Civil Disturbance’ Workers Online June 2005, http://workers.labor.net.au/features/200506/c_historicalfeature_tom.html; ‘Into the Industrial Dark Ages: the civil liberties implications of the Federal Government’s Industrial Laws for the Australian Construction Industry’ in Civil Liberty, the Journal of the NSW Council for Civil Liberties Inc. June 2005
Romeyn, J. (2008) ‘Striking a balance: the need for further reform of the law relating to industrial action’ Published by the Australian Parliamentary Library

http://parlinfoweb.aph.gov.au/piweb//view_document.aspx?TABLE=PRSPUB&ID=2789.

International Centre for Trade Union Rights ICTUR (1999,2002-2007) Senate Submissions into WR Act and WorkChoices submission no.185. http://parlinofoweb.aph.gov.au ILO 1983, 1998, 1999 – 2003 Reports of the Committee of Experts on the Application of Conventions and Recommendation www.ilo.org
McCrystal, S. ‘Shifting the balance of power in collective bargaining: Australian law, industrial action and WorkChoices’, The Economic and Labour Relations Review, 16(2), May 2006, 210;
McCrystal, S. ‘Smothering the right to strike: WorkChoices and Industrial action’, 19 (2006) Australian Journal of Labour Law, p. 201
McCrystal, S. 2009 ‘A New Consensus: The Coalition, the ALP and the Regulation of Industrial Action’ in Fair Work The new Workplace Laws and the WorkChoices Legacy edited A. Forsyth and A Stewart (Federation Press, Sydney).
Novitz, T. (2003) International and European Protection of the Right to Strike A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union (Oxford University Press).
White, C. (2010) ‘Firewalling the right to strike in Australia?’ chapter 8 in G Radhika
Anand (ed). ‘The Right to Strike’(Amicus The Icfai University Press).
White, C. (2009) Senate submission the Fair Work Bill No 122 http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/submissions.htm
White C (2008) ‘The right to strike’ chapter in Evatt papers Sheil, C (ed) ‘The State of Industrial Relations’, Vol. 5, No. 1, Evatt Foundation, Sydney, 2008, pp. 91-102.
White, C. (2005) ILO Protection of the Right to Strike: ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html.
White, C (2005) ‘The right to politically strike? The case for re-evaluation’. Evatt Foundation on-line13/4/2005: http://evatt.labor.net.au/publications/papers/139.html
White, C. (2004). ‘Right to strike issues in the October 2003 Universities national strike’ AIRAANZ 2004
White, C. (2005) ‘The Right to Politically Strike?’ AIRAANZ 2005 Conference Sydney Universityhttp://airaanz.econ.usyd.edu.au/papers.html
White, C. (2005) Senate Submission on the Building and Construction Improvement Bill
White, C. (2005) Senate Submission on WorkChoices Bill (2005) Senate Inquiry submission No. 129;www.aph.gov go to Senate submissions
White, C. (2005) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No56, 66. www.jape.org.
White, C. (2005) ‘Howard makes the ‘blue’ unlawful. The right to strike is down the WC’, Evatt Foundation on-line 2 November 2005, http://evatt.labor.net.au/news/358.html
White, C. (2006) pamphlet on ‘How Howard is taking away the right to strike.’
White, C. (2005) ‘Howard’s IR plans’ ICTUR International Union Rights Journal
White, C. (2006) ‘Provoking Building and Construction Workers’ 20th Conference AIRAANZ 21st Century Work: High Road or Low Road? http://www.aomevents.com/conferences/AIRAANZ/papers.php.New Matilda 7th July 2006 http://www.newmatilda.com
White, C. (2006) ‘The Perth 2007 and the right to strike’ ICTUR International Centre for Trade Union Rights magazine International Union Rights. Volume 13. Issue 3.
White, C. (2006) ‘The Perth 107 Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au
White, C. (2006) ‘Right to strike contest. Provoking Building Unionists’ http://www.aeufederal.org.au/E07/FR/Perth107.pdf
White, C. (2006) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.
White,C.(2007).‘What limits the right to strike?’ Blog: Larvatus Prodeo http://larvatusprodeo.net/2007/05/21/guest-post-by-chris-white-what-limits-the-right-to-strike/
White,C.(2007)Criticism of Kevin Rudd’s limitations on the Right to Strike.www.aeufederal.org.au/E07/election
White,C.(2007) Howard’s Prohibited Content on strikes http://solidarity.redrag.net/2007/05/03/prohibited-content/
White, C. (2007) ‘Restore the Right to Strike’ www.greenleft.org.au/2007/711/36927
White, C. (2007) ‘From Penal Colony to Penal Powers’, www.greenleft.org.au/2007/715/37126
White, C. (2007) ‘The Right to Strike to Save the Environment’
www.aeufederal.org.au/E07/election.html
White, C. (2007) ‘China Labour Law’ International Union Rights Journal,
International, 14(1), p17
White, C. (2007) ‘China’s New Labour Law The challenge of regulating
employment contracts. China moves beyond WorkChoices,’ Evatt Foundation,
Sydney http://evatt.labor.net.au/publications/papers/193.html.
White, C. (2007) ‘China moves on rights at work: China may be about to go past
Australia’, Evatt Foundation, Sydney, http://evatt.org.au/news/451.html
White, C. (2007) review of the DVD film by Joe Loh ‘Constructing Fear: Australia’s Secret Industrial Inquisition’ (www.constructingfear.com.au)

http://bushtelegraph.wordpress.com/2007/08/29/%e2%80%98constructing-fear-australia%e2%80%99s-secret-industrial-inquisition%e2%80%99/

White, C. (2004) Review Jim Marr, ‘First the Verdict The true story of the Building Industry Royal Commission’ Australian Options, No. 35, Summer 2004 www.australian-options.org.au.
White, C. (2004) ‘Howard Threatens the Right to Strike’ Australian Options, No. 38

As I began to consider the obstacles being faced to having effective OHS&W laws introduces in Australia, I realised that this task really needed something longer than a pamphlet to analyse them in more detail.

Some readers may think that I am being unnecessarily alarmist, given that OHS&W has gradually improved over the past 20 years.

However, I believe that we have almost reached a stalemate to further improvements.

There are many factors as to why this is happening eg the resistance by the opposition of the Australian Chamber of Commerce and Industry and many employers (but not all) to the introduction of improved regulations and codes; the reluctance of politicians (Liberal and ALP) to introduce more effective laws; the failure by the media to give priority to industrial accidents (compare the focus on traffic accidents); insufficient number of inspectors to enforce codes and laws; apathy of the general public; the reluctance of many ACTU and some union leaders to give priority to effective OHS&W campaigns etc

Humphrey McQueen has analysed many of these factors in his brilliant book Framework of Flesh – Builders’ Labourers Battle for Health & Safety.

My aim is to give a brief background of Australia’s standing in OHS&W in a world context and to encourage progressive people to understand that OHS&W is a top priority for ordinary working people in Australia and needs our urgent attention now.

I also hope that it will challenge those who were hitherto uncommitted about OHS&W to struggle for best practice OHS&W laws, to give support to Ark Tribe and demand the abolition of the ABCC.

Some believe that Ark won on a legal technicality, however, the changes in our OHS&W laws will still occur and we need to fight for best practice, effective legislation.
If Ark still faces imprisonment, obviously we should fight to prevent this happening and to struggle for the ABCC to be abolished.

A Brief International Summary
One of the most concerning issues facing working class people world-wide is the issue of health, safety and welfare of workers.

We have all heard the tragic stories of the huge death tolls of miners in China and South Africa; silicosis-TB amongst Bolivian tin miners (who were dying in large numbers at about 30 years of age), miners and process workers of the killer dust, asbestos etc.
Of course, this is not a new situation. Many of us have read of the conditions that prevailed in the factories that were built during the Industrial Revolution in Britain. Often, it was death and disease at work that were the major reasons for the establishment of trade unions.
There has been the expectation by many owners of industries for centuries that workers should be grateful to have work and, if there are risks to life and health, they should be grateful to have a job! I would argue that many employers in the world and Australia today share that view.

According to the International Labour Organisation (ILO), across the world:
• Each year, more than two million working women and men die as a result of
• work-related accidents and diseases
•
• Workers suffer approximately 270 million occupational accidents each year, and
• fall victim to some 160 million incidents of work-related illnesses
•
• Hazardous substances kill 440,000 workers annually
• – asbestos claims 100,000 lives

• One worker dies every 15 seconds worldwide – 6,000 workers die every day
• Cancer is the biggest killer of workers and most workers who die from work-related cancer die from lung cancer and mesothelioma caused by their exposure to asbestos dust.

This was the reason why the ITUC mounted a Zero Occupational Cancer Campaign (ZOCC) recently for several years to raise awareness about carcinogens in workplaces and to have asbestos universally banned.

More people die because of work than those fighting in wars.

The situation has become so bad, that the international trade union movement observes an International Workers’ Memorial Day on 28 April each year. This day is recognised officially by the ILO, the International Trade Union Confederation (ITUC) and by the governments of many countries including Argentina, Belgium, Argentina, Bermuda, Brazil. Canada, Dominican Republic, Luxembourg, Panama, Peru, Portugal, Spain Thailand, Taiwan and the US.

It commemorates workers who have been killed, injured or diseased as a result of work and those who have been threatened, imprisoned, tortured or killed because they fought for effective OHS&W conditions.

Unions in other countries are campaigning to have their governments give official recognition to the day as well eg Benin, Czech Republic, Finland, Hungary, Malta, Nepal, NZ, Romania, Singapore and Britain.

According to the Maplecroft Health and Safety Risk Index (HSRI), worldwide, Denmark achieves the best occupational health and safety ranking, followed by Luxembourg, Switzerland, Sweden and Finland.

Nine countries fall into the ‘extreme risk’ category, with the Democratic Republic of Congo worst rated, followed by Nigeria, Ethiopia and Bangladesh. The UK is ranked the 30 safest nation, placing it at the mid-point of the ‘low risk’ group. Some other major OECD nations have worse rankings, including the USA, France, Germany, Italy and Spain. Australia is also placed in the low risk group, but it is generally agreed that it does not perform as well as Britain.

The situation in Australia

Well, some might argue, what is the fuss if we are in the low risk category?

The shocking truth is that in Australia each year:
• almost 500,000 work related accidents occur
• 690,000 workplace injuries or illnesses occur
• more than 7,000 Australians die annually from work related diseases and accidents
• (this is far in excess of the the national annual road toll)
• the cost to the Australian economy is a staggering $57 billion.

The above statistics are a national shame for a country which claims to be a modern one and where most citizens enjoy above average wages and conditions.

Incidentally, South Australia is often known as the Mesothelioma State because South Australia has the highest incidence of mesothelioma deaths than anywhere else in Asutralia.

Attitudes of Employers

During my years as a union OH&S officer, I have encountered varying attitudes to the issue of OHS&W by employers. I have met many who are are diligent in organising their workplaces to be safe and healthy for their employees.
However, there are many employers who treat this important aspect of their work with disdain and think that it is over the top. There is a group that seem to think that because they are providing employees with work, that they should accept the risks.
How often have you heard the comment when there are accidents: ?hey know what they are getting into, so they shouldn’t be surprised if things go wrong!

Many of those who have been criminally negligent and actively opposed best safety standards do not consider that they are doing anything illegal.

One glaring example is the attitudes of employers in the asbestos mining, processing and transport industries. The worst example was of course James Hardie was the worst example. Matt Peacock’s 2009 well researched book, Killer Company James Hardie Exposed, gives a detailed account of this company’s criminal behaviour which has contributed substantially to the fact that tens of thousands of Australian workers are dying well before they should be and they are suffering dreadfully painful deaths.

Workers and members of the public were lied to about the dangers asbestos and true nature of their medical conditions. There were attempts by the employer to delay court actions in the hope that the victims would die before receiving their compensation. James Hardie tried to relocate overseas and leave insufficient monies for compensation.
Of course, there is a double standard here. The same principles do no apply to negligent drivers on our roads. They meet the full force of law if their negligence injures or kills others. And this should be the case.
ACCI (the Australian Council of Commerce and Industry), the peak employer body in Australia resists the introduction of effective new codes arguing that there are too many OHS&W laws. In 2005, ACCI published a Modern Workplace: Safer Workplace Blueprint for Improving OHS. Much of it was a complaint about Australia’s OHS&W laws and expressed the desire to have less legislation and opposed the introduction of any laws including Industrial Manslaughter (more about that later).

It released the document on 28 April, IWMD, the very day that millions around the world were involved in ceremonies to remember workers, friends and loved-ones who had died or suffered in the workplace.

On one hand, Australia’s OHS&W laws need to be uniform in all states, but they also need to be effective and they need to be adequately enforced.

Many employers promote the concept of behavioural safety. This approach to OHS&W relies on constantly monitoring the safety performance of employees and does not concentrate on the insistence that employers provide safe and healthy workplaces. Those pushing this philosophy tend to blame the workers for accidents, injury and disease
Humphrey McQueen describes many of these attitudes in Framework of Flesh.

A young Adelaide apprentice, Daniel Madeley, died in April 2004 after his dustcoat caught in an unguarded horizontal boring machine at Diemould Tooling Services, dragging him into a gigantic drill and flinging him around causing horrific injuries.

A spokesperson for the company stated in court that the company owner at the time of the accident was someone who regarded safety improvements as a bit unnecessary! The company was fined $72,000 for breaches of SA’s OHS&W regulations.

WorkChoices

Most would agree that the major reason why the Howard Government was defeated at the 2007 federal elections was the issue of WorkChoices. The Australian trade union movement mounted a very costly, spectacular and effective campaign in the lead up to that election and that was a major factor in the Howard defeat.

The ALP promised to overturn WorkChoices, abolish the Australian Building and Construction Commission (ABCC) and do something about unifying and extending Australia’s OHS&W laws.

The ABCC

The ABCC was created by the Howard Government to put pressure on the CFMEU just as it saided and abetted the actions of Patricks against the MUA in 1998. The ABCC is an anachronistic body which has been given strong arbitrary powers to impose intolerable control over the industrial and OH&S activities of construction workers. Howard sought to create a situation where building and construction workers would be blocked from demanding safe working conditions, which many construction employers did not want to pay.

Ark Tribe, a construction worker in SA, faces 6 months gaol because he held meetings to address OH&S issues at his worksite at Flinders Medical Centre and refused to give details of that meeting to the ABCC .

A political party claiming to support workers would have abolished such a body in its first week of office just as Whitlam abolished the National Service Act in 1972.

The existence of such a body should not be happening in a civilised country in the 21st century.

The campaign to abolish the ABCC and prevent Ark Tribe from going to gaol is a very important one, but I believe that it should be seen in the context of the present threat to our OHS&W laws during the process of harmonisation.

“Harmonisationof OH&S Laws
Arising from the promises of the 2007 election promises, the Rudd and Gillard Governments have been standardising our OH&S laws in the nation in an exercise that began in 2008. Many unionists involved in OHS&W wanted to avoid the use of the word harmonisation as it was a term used by the Howard Government and most workers did not trust a process to merge our OHS&W laws if Howard or Abbott were in control of the process.

The unifying of the laws is something that OHS&W activists in the Australian union movement have been demanding for a period of over 2 decades. During that time, the union OHS&W activists have always argued that national uniform OHS&W laws effectively protect workers and that they should be effectively enforced.

It would be a good thing if the harmonisation process was leading to best practice legislation with effective enforcement.

The fact is, however, that what we are going to get will be seriously watered down OH&S laws, which could lead to even higher levels of work-related disease, accidents and death.

Of particular concern is the fact that existing asbestos codes and regulations will become less stringent. Exposure to asbestos dust is currently the biggest killer of Australian workers.

NSW OH&S legislation allows for unions in that state to initiate prosecution of employers alleged to be criminally negligent. This will not be retained in the new national laws. There are many other changes which will make it more difficult for Health & Safety Representatives (H&SRs) to play the role that they can in SA and other states to protect the health and safety of fellow workers.

It is obvious that the outcome will be disastrous for Australian workers.

The ACTU Leadership & Attitudes to OHS&W

The ACTU leadership over the years claims that OHS&W is a major issue, however, the action to demonstrate this commitment has not always been very strong. When I first got involved with the ACTU OH&S Committee in the late 1980s, it met once every 2 years. A number of activists managed to change this so that it was gradually increased to 4 times a year which is still the case.

The ACTU Assistant Secretary responsible for OHS&W when I first was first on the Committee basically expected to tell the committee members about OHS&W issues and did not want delegate feedback. It was quite a struggle to get motions put, carried and then actioned. I don’t think he understood that unions are actually supposed to be democratic!

At that time, the ACTU was generally way behind the latest thinking in preventive strategies. For example, when most modern manual handling codes had already ruled out weight limits for workers and were promoting the concept of no worker should lift a weight beyond which s/he was able to manage and engineering solutions to MH problems, this ACTU assistant secretary was still pushing for weight limits.

Further, the welfare aspect of OHS&W was considered to be a joke. Once, when we were considering an ACTU recommended accident/injury report form, I noticed that amongst the multiple choice boxes on the draft form, there were none asking injured workers about psychological injuries.

I did not get much support for this position then, but now, nobody but the worst employers, ACCI (the Australian Council of Commerce and Industry), the peak employer body in Australia resists the introduction of effective new codes arguing that there are too many OHS&W laws.

Most unions have workers’ compensation officers or hire experienced lawyers to assist their members with workers compensation claims. However, very few have specialist OH&S officers to promte prevention and assist members in their struggles for safer and healthier workplaces.

In the late 1990s, the ACTU initiated a new program called Organising Works to address the issue of declining union membership and to promote improved grass root actions in more workplace to resolve industrial issues. Organising Works was brilliant except that one of the program’s key trainers promoted the idea that unions did not need specialist OH&S officers. As a result, one union secretary in SA who is now a parlamentarian abolished the OH&S officer position in his union. Quite appropriately, there was a great member backlash, but the position was not replaced

ACTU OH&S Unit

In 1981, Dr John Matthews was the founding leader of the ACTU-Victorian Trades Hall Council OH&S Unit. Over the years, this unit has assisted large numbers of union activists on OHS&W matters and represented the union movement in trying to achieve best practice OHS&W codes and laws.

During then time of the National OH&S Commission, the ACTU and ACCI (the Australian Council of Commerce and Industry), the peak employer body, received grants to employ a number of staff in their respective organisations.

For a number of years, from the late 1990s to about 2005, the ACTU employed 3 well qualified and experienced staff in this unit. This dedicated group of people were involved in negotiating with the NOHSC and other agencies preparing national codes, working on the ACTU OH&S Committee papers, assisting union leaders activists with expert advice, organising OHS&W campaigns every year to coincide with IWMD and union OH&S conferences and providing up to date OHS&W information to the union movement.

Sadly, they were basically stampeded out of the unit in 2005 by Richard Marles, an ACTU assistant secretary who is now a federal parliamentarian. They were replaced with one officer.

The person appointed was Steve Mullins who did not have experience in OHS&W, but worked extremely hard to get control of the job. He achieved much, but obviously could not match the achievements of the 3 officers who preceded him.

OHS&W & Elections

The ACTU usually goes into overdrive when there are federal or state elections to promote
current union campaigns.When I was a member of the ACTU OH&S Committee in 2006, I successfully moved a motion that OHS&W be a major component of the ACTU Your Rights at Work Campaign which was a major reason for the defeat of the Howard Government at the 2007 elections.

Also, just prior to the elections, the ACTU OH&S Committee finalised the Union Charter of Workplace Rights for OHS & Workers’ Compensation.

This statement was seen as a very important document by the union movement as it assumed that workers have a basic human right to have the best OHS&W conditions in their workplaces, effective legislation and strong enforcement of it and adequate compensation if they still became injured or diseased.

The ACTU OH&S Committee recommended that the Charter be used as an election tool and to call on activists to ask candidates to commit to it during the campaign in the lead up to the 2007 election.

Sadly the issue of OHS&W was not central to that campaign. Basically, any mention of OHS&W was left to that courageous worker, Bernie Banton, who was terminally ill because he was in the final stages of mesothelioma. Bernie took on former Health Minister Tony Abbott to have the drug, Alimta, made available on the pharmaceutical benefits scheme to mesothelioma sufferers. This drug helps to alleviate the symptoms of cancer and prolongs life and was available for sufferers of ordinary lung cancer, but not mesothelioma of the lung. Abbott was not going to give in, but changed his mind just before the 2007 election thanks to the actions of Bernie and some very callous remarks made by Abbott.

To be fair, former ACTU Secretary, Greg Combet, also accompanied Bernie Banton in court appearances to ensure that asbestos victims received more adequate compensation than what the James Hardie corporation was originally prepared to give. This battle also proved victorious.

Some unions did promote the Charter, but it was not promoted by the ACTU leadership. Indeed, during this time, it was very difficult for many union members to find it on the ACTU website.

It should be noted that Greg Combet, the former ACTU secretary was one of a number of union leaders who successfully entered Federal Parliament in 2007. Union activists might well ask what are these MHRs and senators doing to ensure we get the most effective OHS&W laws?

Then Deputy PM Julia Gillard, addressed the 2008 ACTU OH&S Conference in Melbourne. I asked her if she would personally commit to the Charter. Her response was that she would not do so as she had not seen it. Steve Mullins told me that her had given it to her personally.

At the 2009 ACTU OH&S Conference in Sydney, the delegates carried a resolution urging the ACTU Executive to organise a campaign to promote OHS&W that would be as well resourced as the Your Rights at Work Campaign (YRWC).

In response, the ACTU initiated a campaign entitled DON’T RISK 2ND RATE SAFETY (DRSRS) which is supposed to pressure the Government to introduce effective laws which will be effectively enforced.

The leadership activity around this campaign is so low that many key union members do not know of its existence. At an Ark Tribe rally in 2009, I worked with a group of comrades to encourage the several thousand present ro sign a petition for the DRSRS Campaign. Out of several hundred activists attending the rally I spoke to not one knew that the ACTU even had a campaign!

The union movement in Australia is very fortunate that the Victorian Trades Hall Council (VTHC) OH&S Unit exists because it has done a great job in providing OHS&W resources to assist the ACTU during the harmonisation exercise as well as promoting the important ongoing OHS&W campaigns.

Zero Occupational Cancer Campaign (ZOCC)
This campaign organised by the ITUC should have provided a great opportunity for the union movement in Australia to educate the public about work-related cancers. Cancer is the biggest killer of workers world-wide and in Australia, the asbestos-related cancers are the ones that claim most workers’ lives.

In 2008, the ACTU OH&S Unit organised a one day briefing for union officials. About 30 attended and most were officers responsible for OHS&W. At this day, there was agreement that the union movement would make this a large campaign that would involve grass-root union activists across the nation. It was also agreed that there would be a national conference inolving unions, researchers, cancer councils, cancer sufferers and the wider community.

In late 2009, there was a successful one day conference, kNOw Cancer in the Workplace Conference, which involved the Australian Cancer Council. The papers can be found on the Cancer Council’s website, but not on the ACTU’s.

ZOCC was picked up more energetically by the Victorian Trades Hall Council (VTHC) OH&S Unit, which organised a number of events and carried a lot of information on its website.. A few unions independently organised their own events and carried information on their websites eg AMWU, AEU, PSA/CPSU . In South Australia, the PSA/CPSU and SA Unions held half day seminars during SafeWork SA’s Safe Work Month in 2008.

It is interesting to compare what happened during this campaign in other parts of the world. As I mentioned earlier, the campaign continued for about 5 years internationally. The Canadian Auto Workers prepared a manual for its members, which explained how cancers are formed, what chemicals and other agents cause them, suggested actions to identify carcinogens in workplaces and to have them replaced with safer products. There were goals to drastically reduce the number of carcinogenic agents used in workplaces world-wide and to achieve an international ban on asbestos.

Britain’s Hazards Magazine repeatedly included information about the campaign. The International . The International Metalworkers Federation prepared a very informative booklet, which was used by its affiliates and other unions around the world.

The issue of occupational cancer is a big one in this country and the ACTU leadership should have shown greater leadership to ensure that ZOCC continued for a longer time and reached many more Australian workers than it did.

Why OHS&W is not deemed as a major issue by the ALP & some union leaders

OHS&W is one of the great issues that the progressive movement needs to adopt far more strongly than it has in the past. ALP governments are not willing to push this issue as strongly as they should if ithey were truly supporting the Australian working class.
This also affects the ACTU as many of its leaders eventually become ALP MPs and they do not want to take stands that are likely to get them off side with the conservative elements in ACCI and the ALP.

ACCI representatives almost always push for OHS&W codes that are not effective and certainly oppose the introduction of Industrial Manslaughter Legislation. Such legislation would ensure that negligent employers whose negligence leads to death, serious injury or disease would personally be liable to be fined and/or serve prison terms.

The only ALP government in Australia to support such legislation is the ACT government.

This is the reason why progressive unionists and activists need to be active in promoting OHS&W

I thought it was amazing that the Federal Government was so inept in defending itself during the public debate over the tragic deaths of the insulation workers while carrying out installation work as part of the Federal Government home insulation program. virtually accused Peter Garrett of industrial manslaughter.

Government members could have pointed out that, in every state and territory of Australia, there are already OHS&W laws that require employers to undergo a risk assessment procedure and to provide their employees with adequate training in safe work procedures
before any work begins and to ensure that there is effective supervision. Further, all employers have a duty to provide healthy and safe workplaces and to provide employees with safe equipment and materials to carry out their work safely. Each state and territory have inspectorates to ensure that these laws are adhered to.

Deputy PM, Julia Gillard, was correct when she stated that Peter Garrett cannot be in every roof while the insulation is being installed. However, if it is true he knew that there were poor safety standards involved at the beginning of the program, the responsible course of action on his part would have been to liaise with OH&S authorities around the country to ensure that all involved in the program were trained and were provided with safe systems of work, safe equipment and effective safeguards before the work commenced. Further, inspectorates should have been monitoring the program closely to ensure that safety standards were not being breached.

Those workers died because there were failures on the part of many key players.

During the public debate, Tony Abbott tried to accuse Peter Garrett of industrial manslaughter. This is interesting because the Liberal and National parties have always opposed the introduction of industrial manslaughter legislation. The only government that has such legislation is the ACT. There have also been attempts to introduce this type of legislation in NSW, Victoria ans SA, but other ALP governments do not want to introduce such legislation either largely because of the reaction by the big employers.

If people who drive in a negligent manner kill or maim others, they expect heavy fines and prison terms. Why should this not the case for negligent employers who through their negligence kill or maim employees? This should be an integral part of an effective OH&S legal system. As I write, the local daily paper, The Advertiser, ran two stories one about a young person driving in a dangerous manner and the other about an industrial death on the desalination plant at Port Stanvac. The first story was on page 3 even though no-one was hurt; the report of the industrial death appeared on page12!

Having worked in the union movement for about 25 years, I know that many union leaders including those in the ALP do not give much priority to OHS&W. For some of those who want to enter parliament, I am sure that there is the consideration of not wanting to get big interests off side, but for many others, they just don’t understand.

This is the challenge. As we struggle to make changes for a safer and healthier future, we need to change

Conclusion

It is my view that all progressive, green and social justice activists should strongly support the campaign to abolish the ABCC and to prevent Ark Tribe from going to prison. However, the ever present issue is the demand for OHS&W codes and laws that protect workers from injury, disease and death.

OUR OHS&W RIGHTS AT WORK ARE WORTH FIGHTING & VOTING FOR TOO!
DON’T RISK 2ND RATE SAFETY!
DON’T RISK 2ND RATE OHS&W CAMPAIGNS!

Andy Alcock

SUGGESTED READING
I would urge all progressive activists to read the 2 books listed below as they describe the tragic situations that have been allowed to occur in Australian workplaces because of inadequate OHS&W laws and lack of effective enforcement of the laws that we have.
Humphrey McQueen: Framework of Flesh – Builders’ Labourers Battle for
Health & Safety (Ginninderra Press)

Matt Peacock: Killer Company (ABC Books)

MESSAGE TO ARK TRIBE
5/11/09 10:09
“Many workers around the country are watching your case with great interest because your courageous stand is about workers’ basic human rights to work in a healthy and safe environment.

As the ABCC tries to bully you and fellow construction workers into not organising over this crucial issue, the Gillard-Rudd government is embarked on watering down our OHS&W laws in Australia.

The struggle to resist this move by the pseudo Rudd Labor government must be resisted as we fight to remove the ABCC. In 2007, the ACTU published a Charter of Workers OH&S Rights. This is based on the UN Charter of Human Rights, but is widened to include the important principles of best practice OH&S & Workers’ Comp & Rehabilitation laws that are needed to achieve the basic human right for workers to be healthy and safe at work. It is important that all rallies to support you demand that our political leaders commit to this Charter and ensure that our national OH&S laws are very strong and not weak as could be the case. All progressive workers and Australian citizens are with you, Ark, as they keep dragging you into court hearing after court hearing. See you in December outside the Adelaide Magistrates’ Court.
A la lucha continua!
Venceremos!
Andy Alcock
former union OH&S officer & human rights activist”