It is well-established that the right to strike is protected under the International Labour Organization’s 1948 Freedom of Association Convention and 1949 Convention on the Right to Organise. However, this is another internationally recognised right that Prime Minister Scott Morrison’s Coalition government has been incrementally eroding.
Australian industrial relations laws are some of the most repressive in the Global North. These restrictions include the full disclosure of the nature and timings of stop-work actions, limits on demands and discretion to prohibit protests affecting public services.
Industrial action is at a post-World War II low. The number of work stoppages has fallen by 97% since the 1970s.
This decline in worker demonstrations has been directly linked to the flatlining of wages since 2010.
Following its return to power in May, the Coalition government has once more taken up its long-term campaign against unions and re-introduced a piece of legislation that the Australian Council of Trade Unions (ACTU) describes as "an attack on working people, which has no precedent in the Western world".
The Ensuring Integrity Bill was passed in the House of Representatives on July 31. It will be voted on in the Senate in late October, following a review. If passed, the provisions of the bill will broaden the government’s ability to interfere in the internal operations of unions.
Crippling bargaining ability
These so-called "integrity" laws will enable the government and parties with a "sufficient interest" to seek court orders to sack union officials and have workers’ organisations deregistered. This will in turn hinder worker mobilisations and keep a chokehold on wages.
An ACTU spokesperson told Sydney Criminal Lawyers that, "despite having not released any election policy on industrial relations, the government made it clear immediately after the election that it was happy to be a mouthpiece for the employer groups and business lobby when it came to IR policy.
"These groups see this government as a chance to further erode workers' rights, and find new ways to slash pay and conditions. Workers deserve a government which puts their interests ahead of multinational companies."
Much has been made of the provisions that will allow a union official to be sacked over criminal convictions. However, the ACTU spokesperson pointed out that "union officials could be barred from holding an office because they breach civil provisions of the Fair Work Act".
Moreover, the recent NSW hospital staff strikes over safety concerns are the type of actions that "could result in the deregistration of a union", as the provisions of the bill could apply in this case due to the strikes being deemed obstructive unprotected industrial actions.
Busting union powers
The Ensuring Integrity Bill 2019 amends the Fair Work (Registered Organisations) Act 2009 so that the industrial relations minister, the registered organisations commissioner, or a "person with a sufficient interest" can apply to the Federal Court for orders that stunt union operations.
The legislation’s explanatory memorandum outlines that sufficient interest means "an interest beyond that of an ordinary person and includes those whose rights, interests or legitimate expectations would be affected by the decision". This could include an employer organisation.
The first schedule of the bill establishes grounds under which a union official can be disqualified. These include committing a criminal offence against, or contravening the provisions of, designated industrial laws, as well as failing a "fit and proper" test.
Deregistration of unions is the aim of the second part of the bill. Obstructive industrial action is one of the grounds for which a cancellation of a union registration order could be issued. This would include strikes that impede a federal system employer or the public service.
Schedule three establishes provisions where orders can be sought to have an outside administrator take over the running of a "dysfunctional" union. The grounds for such an appointment include multiple contraventions of industrial laws. Certain strike actions could result in such an order.
The final imposition the bill provides is that the Fair Work Commission must make a ruling on whether the amalgamation of two or more unions could have an adverse effect on the economy. If the proposal fails this "public interest test", the amalgamation must be prohibited.
ACTU secretary Sally McManus told the ABC in 2017 that she has no problem with workers breaking "unjust" laws when it comes to taking strike action. "It shouldn’t be so hard for workers in our country to be able to take industrial action when they need to", she said.
However, current industrial laws keep a tight rein on stop-work actions. This has led to the stymieing of effective bargaining by workers in an industrial relations environment where rising workplace casualisation and unprecedented wage stagnation prevail.
The Coalition is not only moving to ensure it can meddle in unions' affairs via the "integrity" laws; its tabled Proper Use of Worker Benefits Bill 2019 seeks to crack open the financial dealings of unions. Industrial relations minister Christian Porter also announced in late June that he is undertaking a review of workplace legislation. It is thought that this business-focused inquiry will lead to the drafting of further draconian industrial laws.
Compounding wage stagnation
Following its review, the Ensuring Integrity Bill will go before the Senate in October. This is where the legislation failed last year due to lack of crossbench support. The government needs the backing of independents and minor parties to pass these anti-union laws.
Labor and the Greens opposed the bill in the lower house. Despite criticisms of Labor’s post-election performance of late, the ACTU stresses that Labor has taken a "strong stance" on this legislation, as it understands what this bill means "for Australian workers and their rights".
"Interference in the operations of unions reduces their capacity to bargain, and win better wages and conditions for workers, compounding the problems of wage stagnation", the ACTU spokesperson said. "The Scott Morrison government is clearly motivated by an ideological hatred of unions."
[Paul Gregoire is a Sydney-based journalist and writer for Sydney Criminal Lawyers.]