If Labor wins, we need to push for the right to strike

May 16, 2022
NSW Nurses and Midwives taking protected industrial action in February. Photo: Isaac Nellist

I urge all unionists to press for the right to strike if Labor wins government on May 21.

After the Your Rights At Work campaign defeated former Coalition Prime Minister John Howard, unions and the Australian Council of Trade Union (ACTU) leadership dropped campaigning. PM Julia Gillard was able to retain the repression on strikes, contained in Work Choices that remains in the Fair Work Act (FWA).

Unions’ right to strike campaign is to repeal all FWA penal powers and all sanctions against workers and their unions exercising industrial action.

We need a “firewall” protection for workers in their unions taking industrial action, that is, protected action for all or any strikes, full stop.

The International Labor Organisation (ILO) principles must prevail: “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.”

Working-class principles justify workers’ refusal to follow unjust and illegitimate restrictions on withdrawing our labour power.

“Labour is not a commodity”, “our labour power creates wealth”, “the right to strike is a basic freedom that distinguishes us from the slave or from bonded labour or from fascism”. The ACTU argued these ILO principles with Labor PM Paul Keating’s 1993 reforms for the first enterprise bargaining protected action regime. But we did not achieve all our aims. Liberal minister for industrial relations Peter Reith’s 1996 Workplace Relations Act weakened this protected action and limited right to strike.

“Repressive tolerance” of strikes came under corporate legal attack and moved to repression of strikes under Work Choices — the most severely regulated anti-strike regime in the OECD. But, as we know, the FWA retained this repression of strikes.

Howard’s spin was, “We are not taking away the right to strike” and, similarly, Labor MPs all say they support the principle of the right to strike. But, in practice, unionists are not free to strike. ACTU policies and submissions endorse these ILO principles based on the right to strike as a civil, political, and socio-economic entitlement.

If Albanese becomes PM, unionists must insist his government deletes all of the FWA anti-strike provisions and insert the above ILO principles. They should also insert a section to ensure no employer, or state apparatus, can take a legal case against any industrial action, full stop.

Employers’ use of legal sanctions to stop strikes and to fine striking workers and union officials must not be available.

Corporate law firms must be removed from the industrial relations practice of stopping strikes with injunctions. The right to withdraw our labour-power must be “firewalled” — legally — over corporate law.


What would this “firewall” protection for strike action mean?

Striking would be lawful. Such a new FWA would guarantee freedom for workers in unions to collectively bargain, including using strike action.

Unionists must be free to determine the strike processes, the timing, negotiations, notices, tactics and free to determine how we take industrial action — all democratically decided in paid workers’ meetings.

Workers must be free to pursue any demands — not in any way legally constrained, not restricted by old legal restrictions of “matters pertaining to employment” or so-called “not permitted” matters.

Unions must be free to bargain with industrial pressure for claims, not only for collective agreements, but over unfair management prerogative decisions, industry development strategies, job protection provisions and for environmental demands.

Industry and pattern bargaining industrial action must be made lawful and industrial parties must be free to determine the level of bargaining.

The right to strike on occupational health and safety has to be absolute.

The employer’s right to lockout must be repealed, with Qantas tactics made unlawful.

The Workplace Relations Minister must not have the discretion to stop industrial action. Competition law and trade practices law outlawing solidarity strikes and secondary boycotts must be removed.

The individual worker on strike must be protected by removing the return to work orders, the threat of dismissal, victimisation and fines. There must be no exceptions, such as “for damage to persons or property”.

The Stasi-like Australian Building and Construction Commission (ABCC) regime, or Fair Work Bill provisions, must be repealed.

Restrictions in trade-related industries must be repealed. The lawful strike must be extended internationally as it is essential for unions to be able to organise global solidarity actions against multi-national corporate interests.

Workers’ right-to-strike is a last resort response to bad government policy affecting workers’ interests.

Workers, as citizens, must have legal protection for political protest assemblies e.g. against Work Choices and the ABCC. There must be no penalties on workers taking time to attend rallies, or protests, on foreign affairs against dictatorships, for example, in Fiji and the Indonesian military's genocide against the East Timorese.

The lawful strike supports human rights struggles.

Union officials organising a strike must have legal protection against ancient British master and servant common law actions in tort, contract and in equity — with no possibility of crippling damages.

Industrial disputes must be settled by the parties, or in the FWA system, and not in the courts. Picketing must be protected and industrial action not subject to injunctions.

Employers must not be able to employ “replacement” labour to break a strike, as this is a violation of our freedom of association.

Free to bargain

Only then would workers be able to freely bargain.

The question would then become how to revive the strike so working people can regain power and transform Australia. Unions know the strike is the essential means for the power to win our demands, e.g. higher pay and secure permanent jobs.

How workers organise to win a strike is also important. Today, strikes are essential to respond to the capitalist and environment crisis and against the political attacks on workers’ rights. But, they are at a historical low point.

Democratic control by workers in their unions of their industrial action is central to defeat the employers’ decisions, defeat the corporate attacks and defeat the right-wing Scott Morrison government.

Employees have to struggle to win “protected” strikes as best we can. Recruitment succeeds when integrated into successful strike action. But unions cannot resolve our membership crisis simply by adding new members without a powerful strike in place.

Australian unions are good at the one-day protest. But this gives the illusion of progress, distracting from the real problem — the lack of an effective lengthy strike.

Secondary bans, boycotts and solidarity strikes have to return as powerful tools to increase union strength. But social unionism, where the strike is abandoned, loses the central role of workers at the point of production. We must listen to the history of militant workers who did strike against capitalist rulers and do it again!

[Chris White is a former union leader and Secretary of the United Trades and Labour Council of South Australia. Read more of his right to strike articles.]

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