Mailbag

Fontcover of MWJ, February 1996

Right to Strike

Our Prime Minister is proud of his Industrial Relations agenda. Howard takes his repressive strategy against unions seriously. He attempted amendments in 2004 designed to take away the right to strike. This was called, in 'spin' language, the "Better Bargaining" Bill. But better bargaining for whom?

The Workplace Relations Act (1996) provides protected action for workers and their unions from penalties. The threat of and as a last resort, a strike is essential in enterprise bargaining. Unions are protected against common law injunctions as long as the industrial action is within the technical, legal, process boundaries of enterprise bargaining.

Employers contest these boundaries with constant litigation. Traditional collective bargaining is not allowed as national and industrial and pattern bargaining strikes are unlawful. There is no right to strike during the term of the industrial agreement. Political strikes in protest against government policies or over the environment or based on freedom of speech or freedom of conscience or freedom of association are declared unlawful.

Outside of this Workplace Relations Act, strikes are unlawful. Laws penalising strikers include:

1. The Trade Practices Act, section 45D, which outlaws union solidarity and sympathy strikes or secondary boycott bans, as well as industrial action affecting overseas trade.

2. The common law, contract and tort law, where strikes are unlawful as such.

3. State laws.

4. Essential services legislation against certain workers, including maritime workers, which makes legitimate collective action unlawful.

5. Laws against effective picketing (although peaceful picketing and leafleting are lawful).

6. The Crimes Act can be used to criminalise strikers.

It is important to recognize that these restrictive laws against strikes are in breach of the International Labour Organisation, (ILO) principles that state:

"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."

Australian labour law under the Howard Government is below ILO standards. An insidious picture emerges of the Howard agenda of repressing workers' rights by more and more trying to make legitimate union activity unlawful.

Powerful employer organisations lobbied Howard to stop legitimate union bargaining. Thus the government put up the "Better Bargaining" Bill, seeking to add to the unfair restrictions on the right to strike. The ACTU, Industrial Relations academics, opposition parties and the Senate Report criticised this Bill seeing it is a means to fetter workers' rights.

If a worker loses the right to strike, what has the worker left if the employer refuses to negotiate a claim and there is no arbitration? A worker penalized for exercising such a right, threatens our fundamental civic freedoms.

Howard's Bill has six features:

1. Stopping strikes: Third parties can apply to stop a union bargaining period. This is a major departure of labour law. Currently, only the negotiating employer can stop a strike, not a third party.

ACTU President, Sharan Burrow said: "This Bill effectively seeks to ban the right to strike. There is no evidence to justify the Bill. The level of strikes in Australia is at record lows and long-term productivity growth is at record highs. The Howard Government is again taking the side of employers against workers."

2. Legal technicalities: "Matters not pertaining to employment" Unions would not know in advance what a Court may later decide is not an employment relationship.

3. Industrial Relations Commission can order cooling-off periods, stopping strikes.

4. Prohibiting industrial action during the life of an agreement. The current labour law that says union protected industrial action can be taken before the end of an agreement, so long as the action was for extra claims not already covered in the agreement.

5. Prohibiting strikes with other unions. Bargaining strikes taken in concert with workers of different employers are not protected.

6. Strikes against multi-employers prohibited. Australia under the Howard government is the only country that makes strikes unlawful for national, or industry bargaining or for pattern bargaining involving a multi-employer agreement. The Bill would further prohibit industrial action when a multi-business agreement is being sought.

All these sanctions are supported by employer organisations.

The Bill did not pass through the Senate in June. So it is another workplace election issue amongst many that the Howard government is pushing.

Howard's tactic, used by the Cole Commission on building unions, is to demonize action by workers and their unions. This is similar to his labeling and penalizing of so-called "illegal refugees". Those who wield State power can determine what behaviour becomes "illegal". This is the same approach to defining "terrorists".

Tony Abbott once called workers lawfully striking to preserve entitlements as "treasonous". It is most worrying when basic human freedoms are to be made "unlawful" and penalised.

The Business Council of Australia, representing the largest transnational corporations in Australia, lead by Hugh Morgan of Western Mining, is campaigning against Latham's promise to abolish Howard's Australian Workplace Agreement system, the individual contract bargaining system. This contest is critical. Big business has relentlessly used the AWA system to de-unionise workplaces, forcing of workers on to individual contracts.

Under Howard, there has been no workplace democracy, a weakening of minimum safety net awards; an undermining of collective bargaining; opposition to minimum wages; an inadequate minimum entitlements fund that fails redundant workers; withdrawal of unfair dismissal rights; no support for casuals; no assistance for labour hire workers; no equal pay; undermining of the Industrial Relations Commission and no recognition or respect for unions and the ACTU in policy making.

But the political cycle is turning. Howard's workplace agenda may backfire.

If the Howard government is returned, the bill will be back on Howard's agenda. The dramatic waterfront dispute saw workers and the community campaign against Howard's strategy to break the union; but the MUA is here to stay. Howard would plan another assault on waterfront unionism.

Fourteen Industrial bills were refused by the Senate because they were not in the interests of industrial fair play for workers. But a new Howard government could control the Senate. The Democrats have with some exceptions been critical of the Howard agenda and the Greens have strong industrial relations policies for workers.

How far a Latham Labor government, with Craig Emerson, Labor's shadow Industrial Relations Minister, may go for a re-balancing of Australia's workplace relations to decisively roll back the Howard agenda is an interesting question. [See www.alp.org.au go to Emerson for statements.]

Chris White

Labour Law

Flinders University.

Not Happy John!!

The other day I handed over the unions "0 dollar bill" to the guy behind the jump at the bottle shop and after reading it he told me that since he has been old enough to vote that the liberals had won every election and that he too wanted a change. That was seven yeas ago.

It got me thinking as to how much change that this government has bought about. What has happened to our workforce?

Seven years ago I got away to sea and after being selected to go to AMC to start the IR school we were all told that we would never experience the "roster" or the "pick up". That the Federal Government had taken it away from us. And true enough the nine of us went down to the roster to have my first and last look at what made a huge part of our industry and our union on the day that all that was once in there being packed into boxes and moved out.

From then on in the permanent jobs became scarcer and scarcer, out with permanents in with a totally casualised labour pool. Into which non-union workers are trying to slip into and I guess are in so many ways.

How can we forget the Patrick's dispute and the way in which they set about to get rid of hardworking men and women from the ports of Australia. For those members that have joined since then should stop and think of what will unfold if we don't do our best to change this government. We must not forget all the struggles that have been fought in years gone by...it is now our turn to step up to the mark.

Now that I have a family to care for the importance of having a change of government is only intensified. I want my kids to have access to the best education, a better health system, a safe world in which to grow up in, I want them to be able to get into good employment with conditions that have been put in place to protect them and their families and their families families.

If we do not eject this privatising, biased, and lying government what does the future hold for the generations of future Australians.

Now with the fear of terrorism affecting our everyday lives, each one of us needs to look at the work we do and see that in our line of work we are much more exposed to the likelihood of a terrorist attack. In the past seven years Australia has been catapulted into the international terrorist arena and now, it seems, that we are enemy number one alongside the US.

Globalisation too is threatening the very life that we are all so proud to be a part of. "The sunburnt country" was a phrase that I remember from my childhood and now John Howard and his friends, in this purple circle of multi-nationals, are doing their damndest to reduce us to a truly burnt country. One which is controlled by a handful of fat cats, who continue to break the backs of workers globally, exploiting basic human rights and pitting worker against worker. It sends me cold to think of the dog eat dog world that my children will have to compete in. We need to continue to fight against globalisation with our international brothers and sisters of the ITF and affiliated unions. So at this point in time we must ensure that we are going to be around to do this. We need to get rid of Howard, get rid of the liberals. Lets protect our industry by voting the right way on election day, because if we do not the first thing they will do is get rid of us, the unions, the wharfies, the seafarers, the divers, crane drivers, men and women...YOU AND ME!

In solidarity

Kaz Leavy

National Councillor,

Asst Women's Liaison Officer, seafarer,

member,

wife & mother.

Union No: 6921