One key issue in the Australian Council of Trade Union's “Change the Rules” campaign is the right to strike.
We campaign for parliament to repeal all the penal powers against industrial action from Work Choices that are still in the Fair Work Act and then to enact the lawful right to strike. Full Stop.
We start with the principle that the right to strike is supported and popular. The ’s (ILO) principles say: “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.”
The Fair Work Act breaches these principles. In a new Industrial Relations Act 2019 these principles supported by the ACTU have to prevail.
The legal right to strike
What would a legal right to strike look like?
A new right to strike would guarantee that no employer can seek an order or take a legal case against any industrial action. Existing employer legal sanctions to stop strikes and fine striking unionists and union officials would not be available — what I call “firewall” protection.
The individual on strike would be protected: there would be no fines, no return to work orders, no threat of dismissal, no victimisation — only the loss of pay. Corporate lawyers would be banned. The right to withdraw our labour-power would be legally paramount over all corporate laws.
A new industrial relations system would guarantee freedom for workers to organise and strike in collective bargaining. Any form of bargaining — enterprise, industry, national, supply chains, pattern bargaining — with industrial action would be lawful. The lawful strike would extend internationally as unions organise against multi-national companies.
Employees would be free to determine the strike procedures and free to vote to strike, democratically, in paid workers’ meetings. The government could not decree a no-strike period during the negotiated agreements — that is for the parties to decide.
Workers would be free to determine the negotiations, the notices to employers and the processes for making agreements without state interference.
Unions on strike could not be ordered back to work for allegedly causing damage to the economy or third parties.
Workers would be able to organise industrial pressure for claims for higher wages and improved conditions in collective agreements and in lifting the minimum wage to a new living wage of 60% of median earnings.
Importantly any claims would be allowed — over management prerogative decisions, on precarious work, for job protection, on unfair dismissal, changing the gig economy, over labor hire and outsourcing, over industry development, environmental demands, green bans and social justice demands.
No illegal strikes
Workers would be able to pursue their claims without legal constraints on the content of the demands; not restricted by old legalities of “matters pertaining to employment” or so-called “not allowed” matters. The right to strike for occupational health and safety would be absolute.
The employers’ right to lockout its workers would be repealed. The minister would not be able to stop industrial action.
Competition law outlawing solidarity strikes and secondary boycotts would be removed. The repressive Australian Building and Construction Commission (ABCC) regime and fines for building unions would be abolished. There would be no more state repression of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) organising. Restrictions in trade-related industries would be repealed.
The right to strike politically would be allowed as a last resort response to bad government policy against workers’ interests. Workers, as citizens in a democracy, would have legal protection for political protest assemblies and there would be no penalties against workers taking work time to attend refugee rallies, “No War” rallies or on foreign affairs, as unions did protesting against violent acts of the Indonesian National Armed Forces (TNI) genocide against the East Timorese. The lawful strike supports human rights struggles.
Picketing would be protected industrial action and not subject to injunctions. Employers would be unable to employ “replacement” labour to break a strike, as this is a violation of our freedom of association.
Flying Eureka and Union flags and wearing union badges would be lawful. The so-called right not to associate, not to be in a union would be repealed. The right for workers is to associate in unions.
Union officials organising a strike would have legal protection against ancient British Master and Servant common law actions in tort — there would be no possibility of crippling damages. No torts of intimidation would be allowed.
Industrial disputes would be settled by the parties or in the new Industrial Relations system and not in the Federal Courts. I lobbied in South Australia to achieve limited protection for strikes to be settled in the arbitration system rather than by anti-strike torts law and this then was applied, to a degree, in the Commonwealth system.
History
The issue of strikes and the labour law goes back more than 100 years. In 1993, the Australian Council of Trade Unions (ACTU) supported ILO principles with then Prime Minister Paul Keating’s reforms for enterprise bargaining “protected action”. But we did not achieve all our aims.
Then-Minister for Industrial Relations Peter Reith’s first Workplace Relations Act in 1996 weakened “protected action”. Employers moved from “repressive tolerance” of strikes to the repression of strikes under WorkChoices — the most oppressive anti-strike regime.
However, no one argued against the principle of the right to strike. Then-PM John Howard’s spin said “we are not taking away the right to strike” and then ensured unionists were not free to strike.
Labor MPs Kevin Rudd and Bill Shorten in opposition supported the right to strike. But Prime Ministers Rudd and Julia Gillard accepted the strike restrictions in WorkChoices. The ACTU sold out saying it was “unfinished business”. This won’t happen again.
In 2019, workers need an unfettered right to strike as part of a new industrial relations system with an education system for workers, employers and the community to implement the right to strike. The challenge is reviving the strike so working people in our unions can regain power and transform working lives.
Unionists know the strike is essential for collective organising, the power to win our demands. No employment or social gains have ever been achieved without strikes.
How workers organise a winning strike is a priority. Democratic control by workers in their unions of their industrial action is central to defeat the corporate attack and neoliberalism by right-wing governments. Strikes are essential to respond to the capitalist and environment crisis and to the political attacks on workers’ lives. Strikes are crucial in the campaign for the right to strike. http://chriswhiteonline.org/2017/11/strike-force/
[Chris White was an official for the Australian Workers’ Union, the Australian Liquor, Hospitality and Miscellaneous Workers' Union and the National Tertiary Education Union for 32 years, and for 17 years was assistant secretary and then secretary of the United Trades and Labor Council of South Australia.]