In a major speech at the National Press Club yesterday, ALP Leader Kevin Rudd outlined some of his alternative workplaces relations plan. It includes introducing a national IR system for the private sector, abolishing AWA's, outlawing strikes without secret ballots, and re-introducing streamlined unfair dismissal laws.
The ACTU says its "a good start". Workplace Relations Minister Joe Hockey called it a "donkey", while business groups remain "luke-warm".
But what do you think? Please post a comment.
26 comments:
AWAs should stay for those that want them. Lets allow REAL CHOICE choice to take place.
At present new employees to most of the Public Sector do not get a choice, they have to sign up for an AWA or they do not get the job. I assume it is the same in the Private Sector.
Bring back REAL CHOICE, lets make it an employees choice to either accept an AWA or be part of the workplace's collective bargaining agreement.
Personally, I will not sign up for an AWA, but I and others should not remove the right of those that wish to be on a AWA to be able to do so.
I've been waiting for Labor to unvail it's IR plan for some time now. I must say I'm a little surprised.
Firstly, it cannot be denied that Labor's IR policy is better than the governments. However, I am quite concerned at the number of concessions made to the buisness community and the "streamlining" of unfair dismissal proceedings. However, I am particularly concerned about the provisions relating to industrial action.
At this point, it appears that Labor is trying to toe the middle ground between Unions and employers. However, I don't think the concessions offered to employers were nessesary, or good for workers and union memebers.
Unfortunatly, people are now going to fall in line behind this policy, simply because it is better than Workchoices. I'm now begining to ask myself: is better good enough?
Having read Mr Rudds speech I believe that he has the interests of families at heart, and will attract my vote for the election.
"The only time industrial action will be legally permitted is if it is taken in pursuit of a collective enterprise agreement during a bargaining period." "Employees will not be able to strike during the term of a collective agreement."
If the strike action relates to pay and conditions contained in a collective agreement, this is reasonable. But what about when employers breach the agreement or if working conditions are unsafe?
Such as:
the employer refuses to pay overtime in accordance with the agreement,
the employer attempts to change working conditions (such as availability of leave) during an agreement,
the employer neglects workplace safety responsibilities (e.g. does not replace protective clothing/footwear provided for by the agreement).
While it should always be a last resort, strike action should not be illegal when there is a clear breach of an existing agreement and other means to address the breach have failed.
Martin (ATO)
If this is all he is offering he won't get my vote!!
Peopel;
it is important to explain to people that if AWA was to be abolished, then what will happen to those existing AWAs? are they maintaing their salary/condition? or they will be dropped back to their award condition?
what will happen to their future salary/condition?
People need to have a peace of mind and plan and make decision for their future, especially a decision at election time
Regards
david
on the transitioanl arrangements for people on AWAs, I would suggest that the AWA remain in force to the extent that it does not undercut the enterprise agreement. Thus it would become like the old individual employment contracts (that certainly were used at the ABC) which allowed for above the agreement arrangements.
Lars
Unfair dismissal laws had got out of control however the extreme action of totally removing the laws was well out of order and I think Labor is getting it closer to where it should be.
The ETU needs to back off secret ballots are the only fair and safe way vote regarding strike action or most anything if democracy is to work properly.
Will continue to watch with much interest.
I agree with Anonymous to the extent that we should allow a choice and not abolish AWAs. We should, however, also ensure that the Government implements and enforces fair basic conditions which cannot be traded. Conditions, eg. right to work, conditions of work, minimum and average wages, equal pay for work of equal value, trade unions and workers rights, etc. should be ankered in law. Some of the most advanced and productive democracies in the in the world have a mixture of collective bargaining rights and AWAs but with exactly such safeguards.
It it's a case of this or Workchoices, this will get my vote.
I agree with Rudd when he says that we cant go back to the IR system of old, but I do think the strike action stuff is a bit harsh.
Obviously there is still plenty of time until the election, so if enough of us let the ALP know what we want, they might well make some changes beforehand.
The unfair dismissal bit is fantastic. Howard went too far, but the old system was just a pain in the arse. Somewhere in the middle, as is the case here, is great.
Contrary to my namesake who posted earlier, it's my view that Kevin Rudd has more-or-less successfully found a workable and fair middle ground between the aspirations of certain unions and the demands of employers.
Under a Labor government, limitations on strike action will be relaxed. Workers will have increased leverage, by virtue of their right to legal strike action, which will give them the means to attain a level of pay and conditions that the majority of workers feel are adequate.
But limitations on strike action will not be relaxed to the point where workers may feel obliged to strike, against their will, on account of pressures from a well-organised minority. The requirement for a secret ballot is - to my mind - a fair requirement, the inconvenience of which underscores the fact that (in the words of Mr Rudd) 'industrial action is serious'.
In response to your comments, Martin, about the illegality of strike action during the life of an agreement, I don't think there is a clear case for being concerned. The instances you cite as potential causes for strike action are matters that can be addressed through existing mechanisms without the need for recourse to strike action.
All that said, I don't completely dismiss Chris's or Martin's concerns. Two aspects of Labor's new IR laws raised an eyebrow: workers will not be able to strike in support of an industry-wide agreement; and, employers will not have lawful authority to pay workers whilst they are on strike. In relation to the former, Mr Rudd must define exactly what he means, and what penalties will apply in the case of breaches. In relation to the latter, I think this is extreme.
All things considered, though, the possibility of Labor's IR policy becoming law thrills me.
I am not surprised at the mixed numbers on work choices, on the one hand widespread community opposition to the legislation, and on the other, decreased union membership.
For one thing, the legislation is very hostile to unions: indeed, there has been legislation making union organisers’ work difficult for a number of years. For another, I think there is a feeling around the traps that workers may be discriminated against if they join or belong to a union. (Yes, there is also legislation that makes such discrimination illegal, but we’ve seen how the present government respects legislation it doesn’t agree with. Patricks and the MUA come to mind. The oil for food program comes to mind. And that’s just the more obvious examples.)
To my mind, however, one of the biggest problems is the casualisation of the work-force. Unions tend to be set up for full-time workers, and casual workers don’t think automatically that unions are for them. Even union membership fees tend to be set up for permanent workers: in that they are based on income, and casual workers don’t have a predictable income. (I think also the issue of casual workers often being short of cash is a factor here.) There is a need for unions to find ways of getting casual workers involved and active: perhaps something along the lines of other community organisations such as environmental organisations. I am reluctant to suggest that unions become “Youth Friendly” for one thing, I think young people are smart enough that they would not be impressed by a few middle aged folk splattering the sorts of graphics young people favour and a few “cool”s and “wicked”s around.
Yours sincerely
Thanks for the latest union bulletin. I look forward to receiving these bulletins as it is a key way for members to keep up to date with issues across government departments and union activities in general.
Work choices: I think it is a bit of a no-brainer that the hostile Work Choices legislation resulted in a larger drop of private sector union membership than in the public sector.
Work Choices is more choices for employers at the expense of employees and one of those choices is union representation. Public sector employers are generally far less aggressive in exercising their greater choice at the expense of employees and so public sector employees find that unionism is more valuable to them - because the boss is still talking to their union! I for one greatly appreciate my union and incidentally my boss for still talking to them.
regards
Helen
The right to withdraw labour should always be available, otherwise it is slavery.
I'll take Rudd's option over Howards any day.
I'm on an AWA I didn't want, because it is Governement Policy to put all new employees onto AWA's.
No negotiation, here it is, this is what you have to sign to get the job.
I feel Rudd has whimped out on this issue. Why give so many concessions to employers? They are extremely reluctant to give concessions to their employees. Our conditions are worsening by the year as it is. Rudd will also limited our choices. It should be our choice of if and when we strike. Sorry Kevin you have not made any real committment to the workers.
I think the changes stated by Kevin Rudd are fair and reasonable in todays economy. I think the CPSU should support these even though they don't roll the IR system back to its origins and that some changes had to take place anyway.
Please support Kevin Rudd into the next election.
;-)
Darren Howard
After seeing Kevin Rudd speak and reading the details I can only say I feel cheated. I feel Kevin Rudd has sold out the workers of Australia to gain big business endorsement. Kevin Rudd has gone back on some of the core promises Kim Beasley made in relation to the issue of the right to strike.
If Greg Combet backs Rudd and accepts preselection for a Labor seat we will know he he has sold us out aswell.
I can only hope other Labor members see sense and decides to argue agains Rudd's plan.
Your's in unity
John
We have to support Kevin's plan as a real alternative to this government who is been targeting working families for the last few years. It is important to stand united from Unions to State Governments and Community Organisations if we want to have a real shot at changing the current situation. This is a time for unity, determination and strength.
With Kevin all the way.
Kevin Rudd and the labour party wouldn't know a true labour policy if they fell over it. There is no choice in Australian politics, both parties support big business and the labour party know the only way to win an election is to lean further to the right. Which they will do without any hesitation.
I will never vote for a party because they are a bit better than the opposition. I want a clear choice and if labour doesn't have the guts to present that choice I'll look elsewhere.
Rudd should spend less time promoting himself to the mindless populace and more time reading the history of the ALP.
Howard's IR laws were designed to break the power of unions and make the unions irrelevant. After all if there is no right to strike what can a union achieve. Rudd's policy does nothing to change this. Under a Labour government there would still be no reason to be in a union. I have stayed with the CPSU in the hope that collectively we could bring about a change in government. Now there is no hope and its probably time to opt out of the union and save my $18 a pay dues.
Rudd policy announcements on IR are very disappointing in respect of unfair dismissal and industrial action. There really is no justification for essentially extending the probationary periods for employees of small business for 1 year. Most CPSU members may not be affected by the ALP’s unfair dismissal policy but the Greens are concerned for those people it will affect and we fear it will have a disproportionate affect on young workers particularly in the retail and hospitality areas.
We are even more surprised at Rudd’s announcements on industrial action. The Greens strongly believe in the rights of workers to take industrial action to protect their economic and social interests. It seems amazing that Rudd can support a system that would have made attendance for many people at the Your Rights at Work rallies unlawful.
The Greens now stand as the only party committed to completely repealing the Work Choices regime.
Outlawing srikes. Why is it that governments and their oppositions are all for secret ballots in the workplace but don't have it in parliament.
I just wonder how many laws would actually go through if it wasn't for the whips scrutinising the voting pattern.
Regards
John Murray
Dear Comrades,
Kevin Rudd's IR plan is crock. Instead of trying to impress the Business Council of Australia, he should be defending the interests of workers. I'm no fan of State IR systems (bosses are bosses regardless of whether they are regulated nationally or State-by-State), so I won't weep over their loss. His other proposals, however, are appalling:
(a) The right to strike. This is inalienable and it's what separates wage labour from slavery. No law can take this away from us - and we can't even give it up.
(i) Why should we be prevented from striking to defend our rights over
any issue that we democratically decide is worth it? There's no reason
at all. Rudd is proposing to remove our right to engage in political
protest.
(ii) We need to be able to strike over an issue not covered in our
agreement. If the boss is holding something nasty back and waiting till
we have an agreement in place, Rudd's plan would leave us defenceless.
(iii) We need to be able to strike to enforce an agreement. Waiting for
the AIRC to rule in our favour is not a remedy. The only thing certain
about that is it will take ages if industrial action doesn't force them
to get off their back sides. And, of course, in many disputes a delay
settles the issue in the bosses' favour all by itself.
(iv) We need to be able to strike on an industry-wide basis. Unionism
is about co-operation, not competition, and workers across an industry
have common interests in not undercutting each other. And the bosses,
of course, won't come to the party if we can't exercise industrial
leverage.
(v) Making it unlawful for bosses to pay strike pay means that, no
matter how outrageously the boss has acted, workers will lose money for
defending their rights. This is a charter for the "professional foul".
(b) Rudd's plans for unfair dismissal sound very shonky. If the boss knows that all they have to do for a dismissal to be deemed "fair" is go through the motions, then that's what they'll do. Without an enquiry into the merits of the issue, any procedural guarantees are just useless paperwork.
(c) The plan for secret ballots controlled by the "independent industrial umpire" before industrial action is also objectionable. Does the AIRC control a secret ballot of the bosses before they sack workers, swap shifts around, or increase workloads? Does any State institution direct a secret ballot before bosses can raise prices or cut corners on product quality? I thought not.
Further, it is illusory to think that the AIRC is some sort of independent umpire. Not only has it been stacked mercilessly by the Howard Government, but the conflict between employer and employee is fundamental to this society and no State institution can be independent of it. Workers have to control their own organisations, or they will be in the hands of people with interests in conflict with them.
The only solution to the appalling pro-business attitude of Kevin Rudd is to build the union movement, so that both he & the Business Council know that they won't be able to get away with it. And the best contribution we can make to this is to build CPSU.
In Solidarity,
Greg P.
We have to support Kevin's plan as a real alternative to this government who is been targeting working families for the last few years. It is important to stand united from Unions to State Governments and Community Organisations if we want to have a real shot at changing the current situation. This is a time for unity, determination and strength.
With Kevin all the way.
After seeing Kevin Rudd speak and reading the details I can only say I feel cheated. I feel Kevin Rudd has sold out the workers of Australia to gain big business endorsement. Kevin Rudd has gone back on some of the core promises Kim Beasley made in relation to the issue of the right to strike.
If Greg Combet backs Rudd and accepts preselection for a Labor seat we will know he he has sold us out aswell.
I can only hope other Labor members see sense and decides to argue agains Rudd's plan.
Concerns for the right to strike: Kevin Rudd ‘Facing the Future’ 17/4/2007
(Chris White was a union advocate for 27 years with the AWU and LHMU and Secretary of the UTLC of SA. He lives in Canberra and an ALP member supporting Kevin Rudd for PM.)
I have attacked PM Howard for removing the right to strike, almost to the point of suppression.
I was surprised to hear Kevin Rudd 17/4/2007 targeting strikes as a problem. And on an individual’s basic human right to withdraw labour. The ALP criticised WorkChoices restricting the right to strike. I background the right to strike, argue for the International Labour Organisation ILO principles and criticise outlawing pattern bargaining strikes, compulsory secret ballots, no strikes during the term of an agreement and no strike pay. I argue for the lawful strike, ‘fire-walling’ the right to strike.
The strike wave?
Kevin Rudd’s tone is a stance against strikes: ‘this country cannot afford to see increases in industrial disputes which put at risk Australia’s global reputation’ and ‘there can be no going back to the industrial culture of an earlier age’ and ‘strikes are serious and hurt etc’. But Australia is not going through a 1970s strike wave. The ABS December 2006 strike statistics were up slightly, due to the ACTU ‘National day of Community Protest against WorkChoices’. The long-term trend continues with the lowest number of strikes and workers involved for 45 years. In recent times, nearly all stoppages lasted two days or less and only 56 lasted for five days or more. There is no threat to the economy. The targeting of strikes is in stark contrast with workplace reality. While WorkChoices crackdown on strikes lessens the numbers as there is too much legal risk, a culture of striking that has to be suppressed because it causes hurts does not exist. And in the modern era the principle of a right to strike is not disputed, even by the right wing Hayek in commercial law, but an element of a robust civil democracy.
PM Howard politically acts on behalf of corporate lobbying to suppress strikes. He is an ideological zealot. He seeks revenge about the strike wave 40 years ago. The 1970’s union struggles were against employer over-use of the then penal powers against strikes. Union leader Clarrie O’Shea refused to pay strike fines and was jailed. National strikes responded, making the anti-strike penal powers inoperable, ‘dead letters.’ Hutson (1983).
Is Kevin Rudd’s tone within the same ideology? Is he responding to the pressure from big corporations, and their associations, the AMMA, BCA, ACCI, MBA and AIG to stop any strike?
With globalisation, the more modern policy is strengthening the right to strike to achieve balance with the already more powerful global corporations. The balance is to ensure workers have a say in bargaining for their interests. Some hurt as a last resort is balanced to ensure freedom. In a democracy freedom is also a lawful strike. Workers are not punished, sacked or their unions penalised with injunctions, fines and damages. This is ACTU policy.
It is not often that the US Republican President Eisenhower can be cited in support:
‘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.’
Clyde Cameron’s 1970 argument still applies to PM Howard.
‘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.’
‘Paradoxically, a key factor in producing strikes in Australia is the belief that they can be eliminated.’ Waters (1982) identifies this wrong employer and political belief. Also paradoxically, by providing for a lawful strike, the employer more readily negotiates, respecting the reserve power that is then not used. This means less strikes.
Union struggles against penal powers
Unions have a history of struggle to protect striking workers from penal powers, Unions argue for workers:
• to have freedom from serfdom or from forced labour or
• freedom from being tied to the master as a servant or involuntary servitude;
• protection against the ancient common law doctrines that a strike was unlawful, a tort a civil wrong and a breach of contract; and
• not as corporate wage slaves;
• human rights for freedom of association and collective bargaining;
• freedom in a democracy sustaining citizenship and civil society;
• and not to be abused but with respect for the individual’s dignity in exercising the right.
In Australia it was not until 1993 that PM Keating legislated for greater union freedom to bargain collectively in enterprises. ‘Protected action’ was the (limited) right to strike (protected against common law and statute law penalties). Protected action bargaining was not unlawful and accepted by all, including employer organisations. The International Labour Organisation, ILO, minimum standards was a basis for such union rights.
ILO principles protecting the right to strike
In the tripartite ILO Constitution ‘labour is not a commodity’. The ILO aims for ‘social justice’ in the workplace to take precedence over economic goals. Ben-Israel (1988) describes modern developments:
The strike is basic to the distribution of power between capital and labour, and also forms part of the problem of the autonomy of groups and their relationship to the State. The concept of the strike relates to issues, which lie at the heart of the ideological conflicts of industrial relations. …Since the late 1940’s…a basic consensus emerged, somewhat grudgingly. The social partners’ freedom of recourse to concerted activity gained recognition as an essential element of industrial relations without which freedom of association could not exist. Freedom of association is a fundamental human right…Hence the freedom to strike has emerged as an essential tool for the implementation of such a basic freedom as freedom of association.
PM Whitlam in 1973 ratified 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 are binding (Creighton and Stewart 2005). 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 particular country.
In 1983, the ILO emphasised their key position on 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.
These principles allow unions to freely determine claims and the scope of bargaining. The UN Committee on Economic, Social and Cultural Rights in 2002 said Australia should take steps to not prohibit the right to strike.
Organisations responsible for defending workers’ socio-economic and occupational interests should… be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. (ILO: Novitz 2003: 293)
PM Howard’s 1996 Workplace Relations Act began the process of circumscribing this right to strike. It failed to comply with minimum ILO standards. WorkChoices went further breaching ILO protection for the right to strike. The International Centre for Trade Union Rights made a trenchant criticism (ICTUR 2005; White 2005b).
This right to strike, as freedom of union association, remains a basic workers’ right and is ACTU policy. The union principle is to withdraw labour without sanctions. Working people assert their right to strike as an entitlement in bargaining with the more powerful employer. Workplace disagreements develop from cooperation and subordination to forms of challenge where as a last resort there is a willingness to strike to advance claims and resolve the dispute. Strikes are workers’ strategic responses to employers’ actions in such conflict.
For too many employers, removing industrial conflict means stopping strikes and dealing with symptoms. This employer response does not deal with the grievances that underlie strikes. It leads to inappropriate policy responses, such as dismissing those on strike. However, most employers adopt more appropriate responses that go to the heart of what underlies the conflict, with efforts to conciliate fairly for an amicable outcome to the workers’ grievances.
Strikes are inevitable in a system with the contractual employment of productive labour. Employers and workers at times do not have common interests. Strikes are created by workplace conflict over the authority system of production. Hyman (1972) analysed strikes as a ‘challenge to managerial authority’ and inherent in a capitalist economy. The challenge is to respond to modern forms of the ‘structural antagonism between capital and labour’. I now deal with concerns about Kevin Rudd’s speech 17/4/2007 only on the right to strike.
Outlawing pattern bargaining strikes is unreasonable
In the last decade, single employer enterprise bargaining is obsessively legally enforced. ACIRRT (2002) shows:
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.
This restriction to confine agreements only to single businesses rather than a choice of industry agreements and or multi-purpose agreements is contested by unions. Over 100 years unions had the choice of industry, sector, pattern and enterprise bargaining campaigns around awards or agreements. Legitimate industrial action in reserve was tolerated. Pattern or industry bargaining was widely accepted as pragmatic and chosen by many industrial parties.
WorkChoices specifically makes pattern bargaining, ‘seeking common wages and conditions’ across a number of employers, unlawful. A ballot for protected action that has any sign of pattern bargaining is not allowed.
The ILO criticised Australia because 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’ (ILO 1998).
The ILO found in relation to multi-employer agreements
…by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests (ILO 1999). …the right to strike in support of a multi-employer, industry-wide agreement for all practical purposes is prohibited (ILO 2001).
The ACTU and ALP supported this ILO criticism of PM Howard. A modern recognition of globalisation is to allow collecting bargaining agreements with the global corporations across countries, on the ILO right to strike.
In the building and manufacturing industries with a 150-year industry history that had employer support outlawing union pattern or industry bargaining flies in the face of industrial relations reality. Building and manufacturing industry bargaining contributed more to productivity than enterprise or individual bargaining. Similar arguments apply to other sectors, where a mixture of enterprise and industry bargaining chosen by the parties is far preferable.
Employers in trade, industry and national associations act together in their common interests. Many employers impose ‘pattern bargaining’ with standard individual contracts applied across the workforce.
Workers in national industry unions to be effective combine with other workers for common industry agendas. This is why workers want strong unions. Outlawing pattern bargaining strikes undermines union industry campaigns. Employers should not have this legal anti-union weapon. Parties want choice. Unions’ the freedom of association.
ALP MPs criticised PM Howard for going too far. Kevin Rudd said unions are free to make pattern bargaining claims, but not have any credible legal threat of a strike as a last resort to back them up. For Rudd to back-flip making pattern bargaining strikes unlawful maintains Howard’s unreasonable restrictions. WorkChoices is one of the worst labour law regimes in the world. Even the US does not make pattern bargaining unlawful.
Restrictive compulsory secret ballots unjustified
WorkChoices severely restricts freedom of association by making it compulsory for unions to comply with complex legal process requirements for a secret protected action ballot, PAB. Earlier a secret ballot was voluntary or able to be ordered by the AIRC. Now, before any industrial action commences, unions have to legally comply with 27 pages of new rules for a PAB, (McCrystal 2006, White 2005d, 2006).
Considerable scope for employer legal challenge is designed into these processes to determine whether unions comply. Employers technically challenged single process words e.g. ‘the’ in rule that a union has to give notice to the employer of ‘the industrial action’ under the previous Workplace Relations Act (1996). The extensive litigation against the lawfulness of strikes, with differing judicial interpretations and artificial restrictions made what was on the face of it protected action. But it was declared unlawful by the courts and the unions fined.
Under WorkChoices employers have more opportunities to litigate to stop a strike. It is incredible that on the principle that strikes are to be democratic determined by the workers, that the employer has the legal power to intervene over process technicalities to stop such a ballot. Legal challenge to PAB’s is commonplace. The uncertainty and legal complexity means unions find it tactically difficult to comply. Even with a democratic yes vote and strike pressure, legal avenues can halt it. Employer legal firms urge judicial ‘black letter law’ outcomes, with narrow legalism about the lack of ‘good faith’ bargaining by unions. Juridification of disputes is even more a determining feature.
Minister for Workplace Relations 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. They ought to be able to have a clear say in matters that affect them as employees. But let me go a step further – 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 (Hyman 1986, Kelly 1998). Strikes occur with fair and democratic votes. Democratic decision-making is important. But no evidence compels the ‘lack of democracy’ allegation. The freedom of association says the union members decide.
Some unions’ succeed over the many hurdles for protected action. Ballots when voted on receive worker support and the pressure assists the settlement. The ILO accepts forms of balloting (Novitz 2003). But not the WorkChoices regime that denies effective workplace democracy.
Total prohibition all strikes during the term of an agreement questionable
WorkChoices is further loaded for employers in settling disputes over unfair management decisions during the term of the agreement. It prohibits strike action for all reasons during the term of the agreement.
PM Howard responded to employer lobbying to reverse an earlier Federal Court decision. This reasonably said a union was not always prohibited from taking protected action in the agreement’s life. When the claims are for matters not dealt with in the agreement, it was legally permissible for a union to take protected action. Industrial changes are not closed for the life of an agreement for employers. They are at liberty to significantly restructure their business. But when the union responds, it cannot now under WorkChoices press claims with strike action. Unions regularly now risk penalty when members insist on action in response to an employer’s unfair practices. Workers take industrial action as a last resort when their grievances are not solved through the restrictive dispute settling procedures. Such a strike during the agreement is penalisable. No right to strike exists.
I do not deal with here PM Howard’s unprecedented prosecution of 107 Perth building unionists for going on strike after their shop steward was dismissed. Specific building and construction laws flouts workers’ civil rights, going back to 19th century police suppression. See the Australian Institute of Employment Rights. www.aierights.com.au
Such total prohibition is unreasonable. It is questionable in international labour law jurisprudence. The ILO principles allow a right to strike during an agreement in some circumstances. Ewing (2004) argues that as the right to strike is a human right, then the state cannot take it away entirely.
One instance is industrial action in political protest, such as the ACTU Rallies against WorkChoices to defend industrial, economic and social interests. In a democracy, there ought to be some scope for workers to take limited political protests to defend their broad industrial, social and economic interests ((Novitz 2003; White 2005a). Short political protests with strike action have justification as democratic rights to express political opinion and as a civil liberty in a democracy (Novitz 2004; White 2005a). But the strike in political protest is not protected action and so legitimate political protest action against WorkChoices is unlawful. Surely a Rudd government does not want to make such protest strikes unlawful, exposing workers to dismissal and unions to face orders not to attend.
In a modern democracy facing global warming, green bans or environmental assemblies with community support should not have workers or unions penalised. A form of union solidarity for social justice community protests should be protected. As a human right, individuals withdrawing their labour for reasons of conscience should not be penalised, other than losing pay.
Obviously, illegitimate ‘purely political’ strikes that are coercive, threatening a government would not be lawful.
Compulsory docking of four hours pay
Under WorkChoices no strike pay is an obsession with excessive details. It is an offence for an employer to pay for time lost for a strike. WorkChoices says this is four hours. One example is workers 15 minutes late after collecting on the job for a family of a worker killed and being docked four hours pay. Another was PM Howard's support for a company that docked a full week's pay from 50 manufacturing workers because they had a ban on overtime in support of a collective agreement. A Rudd government should abolish this.
Workers accept pay is docked for lost time. In a few cases workers feel aggrieved when a strike is provoked unnecessarily or any other reason on the merits for the umpire to adjudicate, as an exceptional case for strike pay.
Protecting the right to strike
WorkChoices almost extinguishes the right to strike. This suppression breaks with century-old recognition within the industrial relations system of workers’ collective rights to exercise economic pressure through promising to, or taking, strike action as a last resort, in order to balance the unequal bargaining power between employers and workers. If not lawful, strikes were tolerated. Union members are now liable to be ordered back to work, with increased fines, sued and even criminalised. Australian principles for democracy and citizenship are suppressed.
WorkChoices moves away from a right to strike or a tolerance of strikes back to the 19th century suppression of strikes. PM Rudd could move to the modern era and give ‘firewall’ protection for the right to strike. The lawful threat of a strike may reduce strike incidence.
The ACTU’s policy for new collective bargaining rights with the right to strike has community support. NewMatilda in their ‘Statement of employment rights: the rights of workers within an efficient and fair industrial relations system’ by the Honourable Paul Munro has as no 11: (www.aierights.com.au)
Collective bargaining and industrial action: Every worker has the right to bargain collectively in pursuit of an individual or collective agreement about the work relationship and, without being in breach of contract, and without threat of dismissal or discrimination, to take industrial action to protect their occupational or economic interests to secure agreement about matters that are or are reasonably related to work. Such industrial action should be taken in accordance with legislated procedures enabling exercise of the right in a manner consistent with the ILO standards to which Australia is bound.
whitecd@velocitynet.com.au 20/4/07
References
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White C (2005a) ‘The Right to Politically Strike?’ AIRAANZ Sydney University.
White C (2005b) ‘Inside the ILO Tent’ Evatt Foundation http://evatt.org.au/news/336.html
White C (2005c) ‘Senate Submission on the Building and Construction Bill (2005)’ and WorkChoices Bill (2005)’ No. 129.
White C (2005d) ‘WorkChoices: Removing the Choice to Strike’ Journal of Australian Political Economy No 56, 66. www.jape.org
White C (2006a) ‘Provoking Building and Construction Workers’ 20th Conference AIRAANZ 1/2/2006 Adelaide Volume 2, p99 www.aomevents.com/conferences/AIRAANZ/papers.php
White C (2006b) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.
White (2006c) ‘The Perth 2005 The Right to Strike Contest’ the Australian Institute of Employment Rights www.aierights.com.au
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