From penal colony to penal powers: the right to strike

June 22, 2007

The right to strike is always agreed in principle. "We won't remove the right to strike", the Work Choices ads said. Employers agree — subject to restrictions to protect their class interests. The Australian Council of Trade Unions (ACTU) policy is for the workers' right to withdraw labour without sanctions.

Labor, Greens and Democrats MPs support the right to strike. Industrial relations practitioners and labour law academics, community groups and public opinion all support the principle that employees, when bargaining with powerful corporations and the state, ought not be denied the ability for a lawful strike as a last resort. Socialists of all persuasions have long campaigned for the widest scope for the right to strike. Even neoliberal ideologue Freidrich von Hayek supported the right to strike in principle — but in practice subject to property rights.

The fierce contest is over the boundaries to this universally agreed right.

In Green Left Weekly #711, I gave details of how PM John Howard has delivered for the powerful corporations a strategy to legally suppress strikes. Any enterprise bargaining industrial action is risky and difficult. On the other hand, the employers retain a free hand to use lockouts unencumbered by any complex legal processes or obligatory secret ballots of shareholders.

Howard and his corporate backers relentlessly pursue their interests in today's class struggle but, of course, deny the class nature of their attack as Ross Gittins made clear in his May 8 Sydney Morning Herald piece, "Work Choices stoush revives class warfare".

While I support ALP leader Kevin Rudd's policy for the right to strike for enterprise bargaining, I'm concerned about his unfair limitations. That's because the right to strike is a fundamental social right, without which workers are not able to use their collective strength to improve their working and social conditions.

Attempting to suppress the right to strike paradoxically does not work, even from the point of view of the owners of capital. A key factor in provoking strikes from unions and workers is the management and government belief that they can be eliminated. By the same token, a lawful right to strike places downward pressure on strikes as the employers more readily negotiate when they have to respect the fact that the strike weapon is available as a last resort, if not so often used.

A long history

As a young unionist I learned how the strike weapon led to all major improvements in wages and conditions. It is all about workers' collective countervailing power to employers. I learned of the long history of workers' struggle against the state, and employer use of penal powers against strikers and their unions.

These struggles have a very long history. From the first Egyptian strikes in 1165 BC, workers have always resisted them. Historically, the justifications were for freedom from serfdom, forced labour or involuntary servitude.

With the rise of British capitalism, workers formed unions and took strike action despite laws making unionism illegal. The Tolpuddle Martyrs, transported to the penal colony for violating the anti-union Combination Act in Britain, are a proud part of Australia's history.

In 1787, even before the First Fleet weighed anchor, the sailors struck over conditions — and their leaders were flogged for their pains. Australia's penal colonies brutally repressed strikes and, as 19th century Australian capitalism developed, anti-strike laws repressed union action. The great strikes of the 1890s were brutally crushed with lockouts and state violence.

In the 20th century, the introduction of the conciliation and arbitration system replaced the "rude and barbarous" strike and lock-out. Unions conducted short strikes that, although strictly illegal, demonstrated worker anger about their grievances, and were settled by arbitration.

Most workers turned to the Australian Labor Party to provide remedy for their demands. But at the same time, the revolutionary International Workers of the World in the early part of last century asserted the general strike as the means to challenge capitalism and were ruthlessly suppressed.

In the wages struggles of the 1960s and 1970s, employers inserted "bans clauses" into awards, making strikes illegal. The unions developed a lengthy mass campaign against employer overuse of these penal powers. When tramways union leader Clarrie O'Shea refused to pay fines, Judge John Kerr jailed him. National strikes were immediately launched and an anonymous donor paid the fine.

After that victory, strikes were tolerated although still strictly illegal — mass action had made the penal powers a dead letter. Part of Howard's motivation for the repressive Work Choices laws was political revenge against this union action of 40 years ago.

The government of Malcolm Fraser (1975-83) stiffened no-strike legislation and created the Industrial Relations Bureau to police strikes. This failed due to union opposition and employer reluctance to have their work force prosecuted once a dispute is settled. With the Trade Practices Act, Fraser banned solidarity strikes and secondary boycotts, ensuring that competition law still overrides labour law to this day. However, penal powers did not stop the ACTU's national political protest strike against Fraser's demolition of the Medibank health insurance scheme in 1976.

Unions also campaigned with some success for legal protection against old common law doctrines against strikes. Employers and the arbitration system also, at times, exercised tolerance towards the right to strike: penalties were not sought but, rather, grievances were solved by collective agreement with arbitration in the background. Repressive tolerance prevailed.

Yet, under Work Choices, the old common law view is back and limited protection repealed. Judges follow the ancient precedent that strikes are unlawful, a civil wrong ("tort") and breach of contract.

One example is the unprecedented prosecution by Howard's political police in the Australian Building and Construction Commission of 107 Perth Construction, Forestry, Mining and Energy Union (CFMEU) unionists who struck after their shop steward was unfairly dismissed. Howard's Gestapo-like law flouts building workers' civil liberties, giving them fewer rights than suspected criminals.

Howard and employers will, no doubt, try to associate the ALP with so-called "unlawfulness" in the Perth 107 trial later in this election year. But it was Howard who, with the worst legislation in the industrial world, made legitimate building and construction strikes "unlawful" without good reason.

As the CFMEU poster says: "When they jail a man for striking, it's a rich man's country yet". We are not wage slaves to submit to every unreasonable employer demand.

Right to strike a human right

Human rights advocates argue that the right to withdraw labour is an inalienable human right. As such it cannot be taken away but must, in practice, be protected by the state.

For the right to strike to be effective the individual on strike must have a "firewall protection". Apart from losing wages, no other penalties should be imposed — neither dismissal nor discrimination nor legal assault on union organisation.

To be real, the right to strike requires immunity from common law damages and injunctions. It should not fall foul of the ancient and unfair doctrine that a strike is a breach of the individual's contract. The right to strike in solidarity with others should also be protected.

Today, some balance for workers and their unions is needed against dominant global corporations. Global unionism to enforce collecting bargaining agreements with global corporations across countries needs the internationally recognised right to strike as a backup.

As a democratic civil right, the scope of the right to strike should not be restricted to wages bargaining and socio-economic issues. Workers must be free to determine the causes they will promote by using it. Just as the Australian state does not censor the aims promoted by exercising the right to freedom of assembly, so it is not for it to determine the causes that may be promoted through strike action. This is the basic human right of freedom of association.

For example, green bans in response to the environmental crisis or environmental assemblies with community support must not lead to workers or unions being penalised. The social or community values defended through action to protect the environment must take priority over short-term profit-making that ruins the environment.

The International Labour Organisation position that all countries with agreed industrial relations systems must have labour laws to ensure the right to strike is not extreme. Remember that the ILO was established in 1919 in response to the Russian Revolution, by offering unions participation in industrial reform within capitalism. These minimum ILO principles were an indication of consensus among governments, employer associations and unions.

The ILO does not support "wild-cat" or "sit-down" strikes, picketing where non-unionists or management are "coerced", or a sympathy strike, if the initial strike the workers are supporting was not lawful. It allows judges to repress "abuses" by unions, is not in favour of "purely political" strikes, but accepts "protest strikes" which criticise a government's economic and social policies.

The ILO's position is: "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."

Labor MPs have supported these democratic principles. Respect for the right to strike is the very least workers should expect from the ALP, especially given a Rudd government will probably not have control of the Senate.

Politicians talk about the damage caused by strikes. But the worker's basic freedom to withdraw labour takes priority.

It is not often that US Republican President Dwight Eisenhower is quoted approvingly in Green Left Weekly, but he said: "The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes — one of them is the loss of freedom."

[ALP member Chris White has been a union advocate for 27 years with the Australian Workers Union, the Liquor, Hospitality and Miscellaneous Union and was secretary of the United Trades and Labour Council of South Australia (now Unions SA). He is now a labour law researcher in Canberra. For references contact <>.]

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