Larvatus Prodeo

Chris White has a BA Hons/LLB from the University of Adelaide. He was a union advocate for 27 years, first with the AWU and LHMU and then at the UTLC of SA as Secretary. He is now a labour law researcher living in Canberra. He is a long-term ALP member who can be contacted at whitecd at velocitynet.com.au.

This is a guest post. It is lengthy but the right to strike issues are interesting.

On first hearing at the ALP conference, Kevin Rudd’s IR policy Forward with Fairness is well-crafted. It rejects Howard’s unfair individual contract bargaining and has a modest, fair collective workplace-bargaining system. The new 10 legislated and 10 award minima applying to employees is the legal safety net to turn around current exploitation. I liked the new umpire Fair Work Australia. It is innovative, as long as it adopts the principle of equity, deals on merit with grievances and has non-legal processes, abolishing the excessively legalistic WorkChoices. New workers’ collective bargaining rights for enterprise agreements, with a last resort right to strike, is important in the ALP’s policy. The workforce must have a chance to legally negotiate wages and conditions and advance their economic and social interests.

But I was staggered to hear Kevin Rudd’s restrictions on the right to withdraw labour at the National Press Club on 17/4/2007 before the ALP conference. This was headlines! Maybe corporate lobbyists had been in his ear.

I sent off my concerns. I firstly did not like the tone of his targeting of strikes, as if they are an issue. I said that in this lowest strike era for 45 years, such a beat-up is not warranted. I distributed my concerns to ALP delegates. They agreed. But I was warned that delegates did not want to roll the Leader.

On Friday night, as I was going into a fringe Labor Environment meeting to listen to the impressive Peter Garrett, the ABC rang for a comment on the right to strike. So one of my concerns went public on the Saturday morning ABC.

But first my background research, which has been extensive.

Researching the right to strike, I found a long history. From the first Egyptian strikes in 1165 BC, workers resisted penal powers. I read about the early justifications for freedom from serfdom or from forced labour or involuntary servitude. Servants wanted freedom from being tied to their master. Workers formed unions and struck despite the UK laws making unionism illegal.

Sailors struck over conditions before the First Fleet could sail and were flogged. I read how Australia’s penal colony and early capitalism saw brutal repression of strikes in the 19th century. Unions struggled to protest striking workers from sanctions.

In the 20th century, employers and the arbitration system at times exercised some tolerance of the right to strike. Unions survived when the strike was illegal. Other periods saw repressive tolerance and great battles.

I read decisions by Judges who still follow ancient precedents. They say strikes are unlawful as such, a tort that is a civil wrong and a breach of contract. In response, unions campaigned for labour law protection against this unfair common law.

Unionists argued that we are not corporate wage slaves to submit to every unreasonable employer demand.

I learnt as a young unionist in the 1970s how the strike weapon led to every major improvement in conditions for Australian working families. I learnt never to start a strike workers cannot win. I learnt about the penal powers against strikes.

The 1970s union strikes developed a long campaign against employer over-use of penal powers. Union leader Clarrie O’Shea refused to pay strike fines and was jailed by Judge Kerr. National strikes responded. This mass action made the anti-strike penal powers inoperable, ‘dead letters’. After that, though strikes were strictly illegal, they were tolerated.

I read a new book by Tania Novitz on the ‘International and European Protection for the Right to Strike’. I studied ILO history and principles. The tripartite International Labour Organisation, ILO, with employers, unions and governments, agreed that ‘labour is not a commodity’ and aims for ’social justice’ in the workplace to balance economic goals.

Whitlam 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 and these are binding. The International Covenant on Economic, Social and Cultural Rights of 1966 provides for “the right to strike, provided it is exercised in conformity with the laws of the country.”

I came across a pamphlet in the Parliamentary Library by Clyde Cameron, Whitlam’s Labor Minister, who cited US Republican President Eisenhower.

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.

Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.

Clyde Cameron’s 1970 argument applies to Howard.

The ILO repeatedly emphasises that all countries’ IR systems must have labour laws to ensure the right to strike.

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. (ILO 1983)

I appreciated a modern justification from human rights activists. The right to strike is an individual human right, not to be abused but with respect for the individual’s dignity when withdrawing labour. Such a human right is free from state and employer control.

Yet WorkChoices even abolishes the individual right to strike for an AWA!

These principles allow workers and their unions in a democracy to freely associate, to determine claims and the scope of bargaining and to pursue their interests with the basic workers’ right to withdraw labour without sanctions. ACTU and union speeches, submissions, press releases and policy promote the right to strike. It is supported widely.

I read how the 1993 Keating reforms first established the lawful strike, as protected industrial action for enterprise agreements. Unions and employer organisations agreed. ILO principles were accepted in industrial relations circles.

I studied how Howard’s 1996 Workplace Relations Act began limiting this right to strike and with employer legal restrictions. The UN Committee on Economic, Social and Cultural Rights 2002 said Howard’s restrictions breached agreed policy. The MUA in the 1998 waterfront battle did not have the right to strike.

WorkChoices compounded the breaching of ILO rules. WorkChoices moves away from a tolerance of strikes back to the 19th century suppression of strikes. Howard’s command and control legal restrictions is where he and the corporate powerful go too far.

I learnt how throughout history strikes are inevitable. Workplace conflict over the authority system of production can end in industrial action. Employers and workers do not always have the same interests over the terms of contractual employment.

The policy challenge is to respond to 21st century globalisation, balancing workers’ rights with the more powerful and dominant global corporations. I argue that the right to strike is even more important with today’s structural antagonism between capital and labour.

Global unionism to enforce collective bargaining agreements with global corporations across countries need the international right to strike as back-up.

I learnt how everyone now agrees with the right to strike in principle. Howard’s spin in government ads is: ‘We won’t remove the right to strike.’ Employers agree in principle, subject to restrictions. The ALP, Greens, Democrats, unions, socialists, IR specialists, labour law academics, community groups and public opinion support the right to strike. The fierce contest is on the boundaries.

Workers have to have a legal say in bargaining for their interests with the right to strike. In a democracy, freedom includes a lawful strike. Workers are not to be punished, sacked or their unions penalised with injunctions, fines and damages. Politicians complain about the ‘hurt’ of strikes, but the priority is to ensure a worker’s basic freedom to withdraw labour.

As for the employer, despite agreeing in principle with the right to strike, management opposes a strike. I saw for some employers removing industrial conflict means stopping strikes with lawyers. This inappropriate employer response does not settle the grievances leading to the strike. Many employers conciliate fairly for an amicable outcome to the workers’ grievances, without the need for a strike. Many human resource managers understand that the legal strike in reserve is more likely to lead to consensus and harmony.

I researched WorkChoices’ severe legal limitations on legitimate strikes, almost to the point of suppression. I attacked Howard for removing the choice to strike. See my 2005 article in the Journal of Australian Political Economy and ‘Dissent’ No. 21 Spring 2006.

Howard is an ideological anti-union zealot with the strategy to legally suppress strikes. He politically delivers for powerful corporations and their associations.

What are my concerns? I deal here with the outlawing of pattern or industry bargaining, industrial action, compulsory pre-strike secret ballots and the total prohibition of strikes during the term of the agreement.

I find most undemocratic the incredible extreme power for the Minister to stop strikes. The Australian Mines and Metals Association, the giant corporate right-wing anti-union lobbyists convinced Howard in WorkChoices to give unprecedented political powers to his Minister to intervene to stop strikes. Normally, this was at least decided on the merits by the AIRC or courts. This is unbelievable political state control.

I find Howard’s new regulation ‘Prohibited Content’ extreme political correctness. WorkChoices prohibits terms of a workplace agreement to legitimately assist workers in their union. Legitimate terms for union dues, union training leave and meetings, union information for workers, no AWAs, unions in dispute settlement, bargaining fees, terms on contractors and labour hire, for remedies for harsh unjust or unreasonable dismissal, employers agreeing to encourage unionism and other details were formerly agreed with employers as lawful content in agreements or in arbitrated awards. The Workchoices prohibition severely breaches workers’ freedom of association to determine their claims. If a union claims ‘prohibited content’, protected action is denied. Howard’s extreme anti-union political correctness is the worst repression of the right to strike in the OECD. See this post at Solidarity.

Here are more WorkChoices limitations on the right to strike:

* All unprotected industrial action is unlawful. The AIRC now does not have discretion, but ‘must’ halt industrial action not protected.
* An employer’s greenfields agreement, where the employer agrees with himself on wages and conditions before a new project without the workers and unions, is extreme. No strike can occur.
* A strike is not protected if a non-unionist is somehow involved.
* Employers who agree to strike pay are fined.
* Many complex process requirements allow an employer to stop a legitimate strike.
* Workers not in unions and precarious workers find it impossible to go through the processes.
* WorkChoices has many provisions to stop protected action.
* A third party who is ‘harmed’ can now intervene to stop a strike.
* There are restrictions on the OHS right to strike.
* The employer lockout has no restrictions. The lockout ought to be repealed due to employer over-use.
* The ancient common law declaring strikes unlawful is back as an employers’ weapon.
*WorkChoices abolished the limited protection, so unions risk huge damages, eg. pilots in 1989 faced $6.5 million!
* The Trade Practices Act (1974) still unfairly outlaws secondary boycotts and solidarity action.
* Severe fines and penalties now exist.

I now deal with my concerns on Kevin Rudd’s four limitations on the right to strike.

First, I believe that both Howard and Rudd outlawing pattern bargaining strikes is unreasonable.

WorkChoices outlaws pattern bargaining protected action, ’seeking common wages and conditions’ across a number of employers. This is the worst labour law regime in the OECD. The US does not make pattern bargaining strikes unlawful.

In the Howard decade, single employer enterprise bargaining is obsessively legally enforced. But there is no sector in the Australian labour market or bargaining system in the OECD, which fits the fictitious model of ‘genuine’ enterprise bargaining – all bargaining systems contain elements of pattern setting and workplace bargaining.

For over 100 years unions and employers had the choice of industry, sector, pattern and enterprise bargaining for awards or agreements. Legitimate industrial action in pattern or industry bargaining was accepted as pragmatic. Industry agreements can contribute more to productivity than enterprise or individual bargaining.

The ILO 1998 criticised Howard as the industrial parties should not be denied how they bargain and at what level. ‘Provisions which prohibit strikes if they are concerned with the issue of 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’.

Employers in their trade, industry and national associations act together in their common interests. Employers impose ‘pattern bargaining’ with standard individual contracts. AWAs apply across the workforce.

Workers in more weakly organised workplaces who in the past gained through industry-wide campaigns for new awards continue as second-class workers reliant on minimum wages. Outlawing pattern bargaining strikes undermines unionism. Kevin Rudd must revise his view outlawing pattern bargaining industrial action and allow choice.

Second, I studied all the details in the new compulsory secret ballot regime and they are most unreasonable.

WorkChoices severely restricts union freedom of association. It is now compulsory to comply with complex rules for a secret ballot prior to protected action. Earlier a secret ballot was voluntary. The unionists decided democratically how to vote on strike action. Now, before any protected action commences, unions have to legally comply with 27 pages of new Protected Action Ballot rules.

Minister Andrews argued:

Ballots were a basic issue of workplace democracy. We think it’s something that is justifiable because people ought to be able to have a say in matters about industrial action. We won’t be stripping away the right to strike. (‘Push on compulsory secret ballots’ The Australian 29/11/2004).

The Minister cited no abuses. Union leaders do not force workers to strike: that is a conservative myth. Strikes occur with fair and democratic votes on the job at meetings. No evidence compels the ‘lack of democracy’ lie.

Freedom of association says union members decide their claims, how they bargain and the voting process as to how they have a say, for a last resort strike. The state or the employer should not be in control.

Scope for employer legal challenge is designed into AIRC processes to make a legitimate strike unlawful, the strike stopped and the union fined. It is incredible that on the accepted policy that strikes are to be democratic decisions by workers, that the employer has the legal power to intervene to stop such democracy. Employer legal challenge to Protected Action Ballots is commonplace, over technicalities and ought not be allowed. The legal complexity and risk mean unions find it tactically difficult. Even with a democratic yes vote and strike pressure, legal avenues for employers can halt protected action.

Some unions’ succeed over the legal hurdles. Protected Action Ballots when voted on receive strong worker support and protected action assists the settlement. The ILO accepts some forms of balloting. But not WorkChoices that denies effective workplace democracy. Kevin Rudd should abolish this WorkChoices system.

Third, I oppose the total prohibition of all strikes during the term of an agreement as unfair.

WorkChoices prohibits strike action for all reasons during the term of the agreement. Earlier, protected action was available with claims for matters not dealt with in the agreement. Restructuring and redundancies are not closed during an agreement for employers. Unions risk penalty when workers strike in response to an unfair employer.

Howard’s unprecedented prosecution of 107 Perth CFMEU unionists for going on strike after their shop steward was dismissed is well covered in GLW. Howard’s building and construction law flouts workers’ civil rights, going back to 19th century policing suppression. “When they jail a man for striking, it’s a rich man’s country yet.” Union Ballad of 1891. The ABBC Gestapo-like legislation has to be repealed. See this site for details.

The ILO principles allow a right to strike during an agreement in some circumstances. As the right to strike is a human right, then the state cannot remove it entirely.

In a democracy, there has to be scope for workers to take peaceful political protests to defend their industrial, social and economic interests, during an industrial agreement. Short political protests with strike action are justified as democratic rights to express political opinion and as a civil liberty. Withdrawing labour for political protest to attend union rallies ought to be a democratic right. WorkChoices makes what was formerly legitimate, attending a rally, unlawful. I gave a paper “The Right to Politically Protest”. On ACTU rallies, see New Matilda 7th July 2006.

With the global warming crisis, green bans or environmental assemblies with community support in a democracy must not have workers or unions penalised.

Also, with today’s modern social unionism, solidarity for social justice community protests has to be legal.

As a human right, withdrawing our labour for reasons of conscience should not be penalised.

Kevin Rudd should ensure in our modern era these basic democratic rights.

Fourth, I find the issue of strike pay hotly debated. Obviously, pay is docked.

Under WorkChoices no strike pay is an obsession. Employers are fined. Workers accept that time lost is not paid, but not the minimum of four hours. Workers 15 minutes late after collecting on the job for a family of a worker killed at work were docked four hours pay! Howard supported a company that docked a full week’s pay for an overtime ban! Kevin Rudd should abolish this. Workers do feel aggrieved when a strike is provoked unnecessarily by the employer. It should be for the umpire to adjudicate on the merits when there is an exceptional case or not for strike pay.

So what is one conclusion for reform of the IR system? Do not get me wrong; there are a thousand reasons to repeal WorkChoices. I support the ALP IR policy, but believe it is necessary to raise these right to strike concerns for public debate.

For the fair go, Kevin Rudd should ensure ‘firewall’ protection for the right to strike.