Laws against strikes

First the legal position on strikes: Workers and their unions have a limited right to strike for an enterprise bargaining agreement. 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. Individuals on strike cannot be dismissed, or victimized or their unions penalised for organizing strike action. Unions are protected against common law injunctions to stop the strike and damages. This protection exists as long as the industrial action is within the technical, legal, process boundaries of enterprise bargaining.

Employers contest these boundaries with constant litigation, to stop strikes deemed "unprotected action" and "unlawful". 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:

• 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.
• The common law, contract and tort law, where strikes are unlawful as such. Courts use the precedents of ancient master and servant law, where an individual breaches the contract of employment when on strike and any union organising is committing a tort, a civil wrong liable for damages.
• There are State laws where industrial action is unlawful.
• Essential services legislation against certain public service workers which makes legitimate collective action unlawful.
• Laws against effective picketing (although peaceful picketing and leafleting are lawful).
• The Crimes Act can be used to criminalise strikers.

International labour standards

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.

Howard’s further political move against the right to strike

Powerful employers’ 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' right to associate, to collectively bargain and, as a last resort, to strike. It advantages employers; already more powerful in bargaining.

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. The changes would tip the balance in workplaces even further in favor of employers. The basic rights of employees need to be strengthened, not weakened. The government's changes would persecute workers for trying to bargain or to take industrial action over legitimate claims for better wages or workplace conditions."

Howard’s strategy is most worrying in a democracy, supposedly upholding basic freedoms for workers to organize and as a human right to be able to strike. 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.

This "Better Bargaining" Bill has six features:

1. Stopping strikes: Third parties can apply to stop a union bargaining period

The Industrial Relations Commission is to have a new power to suspend, protected union in an application by a third party. This third party intervention is new, allowing any person directly affected by the action who is sustaining significant harm to stop a strike. This is a major departure of labour law. Currently, only the negotiating employer can stop a strike, not a third party. Almost by definition, most strikes impact on third parties. So the use of these powers means that legitimate union bargaining strikes would be stopped and be unlawful.

The Howard government heralded this to curb action by teachers, hospital workers, university lecturers, community sector workers and public servants. This is most unfair as these workers should not be denied the power that can come from threatening or if need be, going on strike (so long as public health and safety is not affected). Further, a car company impacted by a suppliers’ strike could stop those workers legitimate exercise of bargaining rights. By allowing any person affected, those politically motivated against unions are invited to stop a strike.

2. Legal technicalities: "Matters not pertaining to employment"

Currently, labour law allows a protected strike taken in a bargaining period around a union claim that is genuinely sought for agreement. The Bill proposes that such a strike is unavailable for a claim that is technically not "pertaining to the employment relationship". Union action would be lawful only within such a legal definition. Unions would not know in advance what a Court may later decide is not an employment relationship. So a strike being lawful would become unlawful. Unions could be fined or strikers dismissed. Predicting lawful industrial action would be most difficult. The bargaining weapon for employers is further strengthened. This restriction does not conform to ILO standards.

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

The Industrial Relations Commission is given more power to stop strikes for cooling-off periods to assist the employer to have more time without the pressure of industrial action. This serves only the employers’ bargaining power.

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. This is fair. The Bill seeks to absolutely enforce that a strike cannot be taken during the life of an agreement; making such a strike "unlawful".

5. Prohibiting strikes with other unions

Bargaining strikes taken in concert with workers of different employers are not protected. In bargaining amongst unions in a campaign, technical failure for every union to take the legal steps for protected action makes the other unions liable for penalties. This is an unfair.

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 ILO has criticised this. The Bill would further prohibit industrial action when a multi-business agreement is being sought. The intention is to stop any industry or pattern bargaining, an undemocratic limitation on the right of workers to associate and organise.

..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...