In response to the decision by the Fair Work Commission (FWC) to order Sydney train drivers to suspend their planned 24-hour strike on January 29, ACTU secretary Sally McManus declared: "The right to strike in Australia is close to being dead."
"Rail workers follow every single rule and law and still the minister of the day can even cancel bans on working their excessive overtime," she said.
Rail, Tram and Bus Union (RTBU) national secretary Bob Nanva added: "Today marks the death of the right to strike in Australia. Australia already has some of the most restrictive industrial laws in the world."
On January 25, FWC deputy president Jonathan Hamberger ordered the Sydney rail strike be suspended for six weeks, saying he was satisfied, based on state government evidence, that the RTBU's overtime bans and planned strike "threatens to endanger the welfare of a part of the population," and "threatens to cause significant damage to the economy of Australia".
This decision occurred under the Fair Work Act, introduced by the Kevin Rudd Labor government, which authorises the FWC to suspend protected industrial action if these two tests are met. The provision has been used successfully at least six times, notably during the Qantas dispute in 2011, when the airline locked out its workers.
This exemplifies the current Australian industrial relations system: As ACTU president Ged Kearney wrote in New Matilda, there is "one rule for big business, another for small workers.
"Massive corporations who pay no tax can lock workers out to force lower wages. But workers face big fines if they fight back.
“Welcome to the fight of our time."
She highlighted the case of Esso (Exxon-Mobil), which has locked out workers at its Longford plant in Victoria’s Gippsland for more than 200 days in a dispute over a 30% pay cut. "Over the past two years in Australia, Exxon-Mobil reported $15 billion in income. And yet they've not paid a cent in tax."
Kearney also noted the Carlton & United Breweries (CUB) lock-out last year, when the company attempted to slash workers' pay and deny them union rights. The workers eventually won, after protesting outside CUB's Melbourne plant for 180 days.
Other current battles include the Port Kembla Coal Terminal dispute, and the long-running Oaky North coalmine lock-out in central Queensland, in which unionists have had their enterprise agreement cancelled and are fighting company demands for drastic pay cuts before they can return to work.
"In Australia today, big companies have too much power," Kearney said. "Not only are many seeking to fire and rehire employees on significantly lower pay and conditions, they're also raking in the profits and refusing to pay tax.
"Clearly, the rules are broken when big companies' profits are going through the roof and everyone else's pay is not keeping up with the cost of living. There's one rule for big business and another for everyone else."
Backing up this view, recently released research by the Australia Institute's Centre for Future Work (CFW) emphasises that severe restrictions on the right to strike are closely linked to record-low wage growth and rising inequality in Australian society.
The research reveals a 97% decline in the frequency of industrial disputes since the peak in the 1970s. In 1974, more than 1000 days per 1000 workers across the year were lost to disputes. In 2007, the figure had dropped to just five days lost per 1000 workers. The average over the past decade is 14 days.
CFW head Jim Stanford described the decline as "shocking". "Strikes have become almost non-existent in Australia's economy," he told the ABC on January 30.
While acknowledging numerous factors behind the reduction, Stanford said the "incredibly far-reaching restrictions" on industrial action were one of the most important.
"Australia has some of the most restrictive rules regarding work stoppages of any industrial country," he said. "We've seen time and again the industrial umpire and the regulators stepping in to limit or restrict or prohibit work stoppages, which were rare to start with."
University of Sydney labour law expert Professor Shae McCrystal said prior to industrial relations reforms in 1993, all strikes were effectively against the law, and that a return to illegal industrial action could be on the cards if the right to strike were to be "regulated away".
"Stagnating wage growth may be a factor in a shift in the way working people and unions view the law," she said.
The High Court, in a majority decision last December over the Esso dispute, further entrenched the legal attack on the right to strike by ruling that the withdrawal of labour is a "privilege," not a right, as it has been traditionally regarded in this country.
"The judgement puts in place even higher hurdles working people must face before being able to take so-called 'legal' or 'protected' industrial action," McManus said.
Under current industrial laws, workers and their unions who take "illegal" industrial action face massive fines, threatening to bankrupt both individual employees and unions. These huge fines are a serious danger to the very existence of union organisations.
To add to this, the Coalition government has successfully re-established the draconian Australian Building and Construction Commission (ABCC), aimed at smashing industrial action and organisation by militant unions in the construction industry, especially the Construction, Forestry, Mining and Energy Union (CFMEU).
The federal government is also pushing to strengthen the powers of the anti-union Registered Organisations Commission (ROC) to regulate union activities and internal organisation, including the ability to sack union officials, deregister unions and block union mergers.
In response to the crisis facing the union movement, the ACTU has launched a "Change the Rules" campaign. Publicity for the campaign states: "We are building a movement to change the rules to bring fairness back to Australia.
"Working people need better and stronger rights at work to ensure jobs are secure and our wages are fair. We need to rewrite the rules to achieve this."
The union movement has launched a community campaign as part of this effort. But much more will be needed if workers are to really "change the rules" enough to win back the right to strike and to take other industrial action to achieve fair wages and other demands.
In a speech to the National Press Club on January 31, Labor Opposition Leader Bill Shorten proclaimed that if Labor won government at the next election it would take action to boost the minimum wage and change the rules for enterprise bargaining which, he said, was on "life support".
He indicated that Labor would amend the provisions that allow employers to terminate agreements and force workers back onto minimum award conditions.
"In the last financial year, terminations were more than double the long-term average and, in that process, all the carefully negotiated conditions are wiped away," he said. "We don't think that should be allowed. Existing agreements should stay in place until they're renegotiated by mutual agreement."
That is all very well, but the union movement cannot afford to rely merely on the pre-election promises of the Labor Party. After all, the results of the highly successful Your Rights at Work mass union campaign, which effectively brought down the John Howard Coalition government in 2007, has clear lessons for unions today.
The slogan "Your Rights at Work: Worth Fighting For," around which a mass movement of workers and the community was mobilised, was changed into "Your Rights at Work: Worth Voting For," in support of Labor.
But when Labor got into power, Howard's draconian Work Choices legislation was amended to Work Choices lite — the Fair Work Act — by the incoming government. We need to demand that the Fair Work Act be abolished outright, and new, fair industrial legislation incorporating the full right to strike and to organise without state interference be enacted.
As the Socialist Alliance Charter of Worker and Trade Union Rights states, we should demand "the repeal of all anti-union laws and extend the right to organise; oppose the ABCC; oppose secret ballots on industrial action; ban lock-outs and discriminatory sacking of union delegates; oppose union liability to pay damages for industrial action; and oppose government interference in the internal affairs of unions."
The ACTU and the union movement as a whole will need to organise a large-scale political and industrial campaign in 2018 and beyond to force any incoming Labor government to genuinely "change the rules" on union and workers' rights. This is the major challenge facing the union movement today.