How to tear up Work Choices - restore the right to strike

May 25, 2007

The International Labour Organisation (ILO) could not be clearer: "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" (1983).

Yet, although claiming that it does not infringe the right to strike, Work Choices has limited legitimate strikes, almost to the point of suppression. The legislation has even abolished the individual right to strike for an individual agreement (Australian Workplace Agreement — AWA), contained in John Howard's 1996 Workplace Relations Act.

That's why new workers' collective bargaining rights for enterprise agreements, with a last resort right to strike, are so important for the ALP's industrial relations policy. It's also why I do not support the views contained in Kevin Rudd's April 17 National Press Club speech, in which he proposed that the right to strike be restricted to the bargaining period for a new agreement and conditional on a secret ballot run by an external agency.

An ALP leader restricting the human right to withdraw labour was certainly headline news. Rudd's targeting of strikes, as if they are an issue in today's low-strike era, was off the wall.

Yet the tripartite ILO states that "labour is not a commodity" and aims for workplace "social justice" to balance economic goals. The ILO repeatedly emphasises that agreed industrial relations systems must have labour laws that guarantee the right to strike.

In Australia, it was the Gough Whitlam Labor government that first adopted the ILO's Convention No. 87 (Freedom of Association and the Right to Organise, 1948) and Convention No. 98 (Right to Organise and Collective Bargaining, 1949), both of which are supposedly binding on signatories.

Their principles allow workers and their unions to freely associate and to determine claims and the scope of bargaining. This is also the Australian Council of Trade Unions (ACTU) policy.

The Keating government first specified the conditions for a lawful strike in Australia as "protected action" for enterprise agreements. The trade unions and employer organisations agreed with this approach and ILO principles were accepted.

Yet, just three years later, Howard's Workplace Relations Act began further limiting this partial right to strike, to the point that the United Nations Committee on Economic, Social and Cultural Rights ruled, in 2002, that Howard's restrictions breached internationally accepted principles.

Work Choices has compounded this breaching. It has moved Australia from conditional tolerance of strikes back to 19th century strike suppression.

Let's look at how the Work Choices regime actually operates against the right to strike, and what the federal ALP leadership must do if it really is to "tear up" Work Choices.

Outlawing pattern bargaining strikes

Work Choices outlaws "seeking common wages and conditions" across a number of employers — pattern bargaining protected action. This is the worst labour law regime among the advanced industrial countries. Even the United States does not outlaw pattern bargaining strikes.

Yet there is no sector — neither in the Australian or any other advanced industrial labour market and bargaining system — which fits the fiction of "genuine" enterprise bargaining. All bargaining systems contain elements of pattern setting and workplace bargaining. For more than 100 years, unions and employers have had the choice of industry, sector, pattern and enterprise bargaining for awards or agreements. Industrial action in pattern bargaining has been accepted by both sides, with industry-wide agreements often contributing more to productivity than enterprise or individual agreements.

In 1998, the ILO criticised Howard's veto on unions deciding how and at what level they would bargain. "Provisions which prohibit strikes if they are concerned with 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."

The hypocrisy is even more glaring when we recall that employers, in their trade, industry and national associations, act together to impose their own "pattern bargaining" through standard AWAs applied across the work force.

Any ban of pattern bargaining also means that workers in weakly organised workplaces continue as second-class workers reliant on minimum wages. In short, outlawing pattern bargaining strikes undermines unionism and Rudd must revise his policy against pattern bargaining industrial action and allow choice.

Restrictive compulsory secret ballots

Before Work Choices, a secret ballot was voluntary: unionists decided democratically how to vote on strike action. Now it is compulsory to comply with 27 pages of complex "Protected Action Ballot" (PAB) rules for a secret ballot. For workers not in unions, and casual workers, it is impossible to start a PAB process.

Former industrial relations minister Kevin Andrews has argued: "We think it's something that is justifiable because people ought to be able to have a say in matters about industrial action." But there is no evidence to support Andrews' "lack of democracy" insinuation. Union leaders have not forced workers to strike: it's simply a conservative myth.

The employer can now legally challenge a strike ballot. It is incredible that, despite the accepted principle that strikes are to be democratic decisions by workers, employers have the legal power to intervene to stop such democracy. Employer legal challenges to PABs have been commonplace. Legal technicalities have stopped strikes over one word, in one case the "the" in the rule that requires a union to give notice of "the nature of the industrial action".

Nonetheless unions have surmounted these legal hurdles: PABs have received strong worker support. Yet, even after a legal yes vote, legal avenues still exist under Work Choices for employers to appeal against protected action.

Freedom of association requires that union members decide their claims, how they bargain and the voting process. The state or employer must not intervene. Work Choices denies effective workplace democracy. Rudd must abolish this system.

Near-total prohibition of strikes

Work Choices prohibits strike action for any reason during the term of an agreement. Formerly, protected action was available for claims not dealt with in the agreement. Now unions risk penalty when workers strike in response to an unfair employer's "restructuring" of the workplace. There are also restrictions on the right to strike over occupational health and safety but none on the (increasingly popular) employer tactic of lockout.

In the building industry it has been worse: Howard's unprecedented prosecution of 107 Perth CFMEU unionists for going on strike after their shop steward was unfairly dismissed harks back to 19th century union suppression. The ILO, in 2005, condemned the Australian Building and Construction Commission that initiated the prosecution.

In a democracy there must also be scope for workers to hold peaceful political protests to defend their social and economic interests. Short political protests with strike action are justified as democratic rights, as freedom of political speech and as a civil liberty.

Withdrawing labour to attend union rallies to express political opposition also has to be a recognised right. Work Choices makes attending ACTU rallies illegal. And, according to ALP industrial relations spokesperson Julia Gillard, this will continue to be the case under an ALP government.

Moreover, with the global warming crisis, green bans or environmental assemblies with community support must not have workers or unions involved penalised. Solidarity with community protests for social justice also has to be legal.
Rudd could and should justify these basic democratic rights.

Prohibited content: Howard's extreme political correctness

Work Choices tells unions what can and can't be included in an agreement, establishing a black list of "prohibited content" including: terms for union dues; union training leave and meetings; union information for workers; bans on AWAs; unions' role in dispute settlement; bargaining fees for non-unionists; terms for contractors and labour hire; remedies for harsh, unjust or unreasonable dismissal; preference for unionist agreements; and other matters that used to be lawful in agreements or awards.

The ban breaches workers' freedom of association to determine their claims. If a union claims "prohibited content" protected action is denied. Here Howard's extreme anti-union political correctness is the worst repression of the right to strike in the OECD.

Labor's policy of abolishing restrictions on the content of agreements is a positive step forward.

Compulsory docking of pay

Under Work Choices the ban on paying strike pay is an obsession. Employers are fined and workers lose a minimum of four hours. Workers who are 15 minutes late after collecting on the job for a family of a worker killed at work have been docked four hours' pay. Howard has even supported a company that docked a full week's pay for an overtime ban.

Rudd has continued Work Choices' ban on the payment of strike pay. But workers feel most aggrieved when a strike is provoked by the employer. At the very least the umpire should have the power to adjudicate on whether strike pay should be paid in such cases.

The minister's extreme power

The Australian Mines and Metals Association convinced Howard to give unprecedented powers to the industrial relations minister to intervene to stop strikes, creating unbelievable political state control. It has shown up in the following ways:

•All unprotected industrial action is unlawful. The Australian Industrial Relations Commission does not have discretion but "must" halt it.

•No strike can occur against employers' new site ("greenfields") agreements, where the employer agrees with himself before workers and unions have even appeared.

•A strike is not protected if a non-unionist is somehow involved.

•A third party who is "harmed" by a strike can intervene to stop it.

•The ancient common law declaring strikes unlawful is back. Work Choices abolished the limited protection, so unions risk huge damages.

In summary, workers taking industrial action now risk being sacked, ordered back to work, prosecuted with increased fines, and even criminalised and their unions sued and crippled. Rudd must, in this modern era, ensure "firewall" protection for the right to strike.

[Chris White, a member of the ALP, has been a union advocate for 27 years with the Australian Workers Union and the Liquor, Hospitality and Miscellaneous Union. He is now a labour law researcher in Canberra. For references contact <>.]

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