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Thursday, April 19, 2007

Kevin Rudd ‘Facing the Future’ 17/4/2007: concerns on the right to strike


I have researched and written on the right to strike and how the Howard government has removed it almost to the point of suppression. It came as a surprise to hear Kevin Rudd in the above speech picking out strikes as a problem. Rather than ripping up WorkChoices as promised, this partial rollback of Howard’s unfair restrictions on the right to strike is I contend not reasonable. It is a reversal of former ALP positions criticising WorkChoices.

Where is the strike wave?

With the tone in his speech as 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 everyone etc’), it may be thought that Australia is going through a 1970s strike wave. Kevin Rudd wants to crack down on strikes to save the economy. Like Howard, this is not industrial relations reality. The ABS December 2006 strike statistics were up slightly, with the ACTU November 2006 ‘National day of Community Protest’. 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, and so hardly a threat to the economy. Consequently, the targeting of strikes with increased penalties is in stark contrast with workplace reality. There is no evidence of a culture of striking that has to be repressed because it hurts everyone.

PM Howard’s repression of strikes is political and ideological and some form of political revenge about what happened 45 years. The 1970’s union struggles were against employer over-use of penal powers against strikes. National strikes then responded to the jailing of union leader Clarrie O’Shea, who refused to pay strike fines, see Hutson (1983). They rendered the then anti-strike laws inoperable, ‘dead letters.’

What is Kevin Rudd’s reason? Is it the same ideology, listing only how strikes are harmful? Is it responding like Howard to the pressure from big corporations in the AMMA and BCA to stop any strike in the resources sector?

Kevin Rudd could have adopted a more modern tone respecting a strike as a necessary means of workers and their unions to exercise bargaining strength as a last resort, and requiring a lawful strike where workers are not punished, sacked or their unions penalised with fines.

Union struggles against penal powers

The unions have a long history of struggle for protection from penal powers against strikes, arguing for statutory immunity from the severity of common law and statutory liability. It was argued that legal recognition should be made for the individual worker to have some freedom from serfdom or from forced labour or being tied to the master, and as an individual was not subject to the ancient common law discredited doctrines that any strike was a tort, a civil wrong or a breach of contract.

It was not until the 1993 ALP Keating government that labour laws were enacted with greater freedom for unions to bargain collectively in enterprises, with a limited right to strike, ‘protected action’ (protected against the common law and statute law sanctions so workers could not be punished). This enterprise bargaining industrial action 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

The ILO Constitution asserts ‘labour is not a commodity’ and aims for ‘social justice’ in the workplace that is to take precedence over other economic goals. The ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) (consisting of 20 expert jurists) and the tripartite Committee on the Freedom of Association (CFA) make clear the obligations of member states. They give effect to the two main Conventions, Convention No 87 Freedom of Association and the Right to Organise Convention 1948, and Convention No 98, Right to Organise and Collective Bargaining Convention 1949. Both were ratified by the Whitlam government in 1973 and are binding (Creighton and Stewart 2005:chapters 3, 18). They were highlighted by the ILO Declaration on the Fundamental Principles and Rights at Work 1998, agreed to by the Howard government.

Union freedom of association is a human right and the freedom to strike essential to it, Ben-Israel (1988).

The phenomenon of the strike is one of the crucial problems of contemporary industrial relations because it lies at the very core of the legal regulation of industrial conflict. 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, albeit slowly and 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.

The jurisprudence from the ILO committees provide the principles for what is required to protect freedom of association and the right to strike, integral to uphold these human rights Conventions.

The UN’s Universal Declaration of Human Rights and their International Covenants have important obligations for freedom of union association. Article 8, paragraph 1(d) of the ILO’s International Covenant on Economic, Social and Cultural Rights of 1966 (agreed to by Australia) provides for

The right to strike, provided it is exercised in conformity with the laws of the particular country.

The ILO emphasised their key position on the right to strike in 1983.

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 socio-economic breadth of these principles emphasises the importance of the scope of legitimate union industrial action, a scope freely allowed for unions to determine. The UN Committee on Economic, Social and Cultural Rights (CESCR) in 2002 recommended Australia take steps to not prohibit the right to strike. Novitz 2003: 293) cites the ILO:

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.

The 1996 Workplace Relations Act began the process of circumscribing this right to strike. That legislation failed to comply with minimum ILO standards for the protection of the right to strike (ICTUR 1999-2004;White 2005b). The International Centre for Trade Union Rights (ICTUR 1999-2004) made even more trenchant criticism of WorkChoices.

This right to strike, as freedom of association, remains a basic workers’ right and is ACTU policy. The union principle is to argue to be able to withdraw labour without sanctions. Ordinary working people assert their right to strike as an entitlement in bargaining with the more powerful employer. Workplace disagreements, depending on the employer’s response, develop where there is a willingness to use strike action to advance claims and resolve the dispute in the interests of members. Workers’ conduct develops from cooperation and subordination to forms of challenge and workplace conflict. Strikes are workers’ strategic responses to employers’ actions in such conflict.

For many employers removing industrial conflict simply means stopping strikes. This employer response does not deal with the symptoms of conflict that underlie strikes and to inappropriate policy responses such as disciplining those on strike. However, most employers adopt more appropriate responses that go to the heart of what underlies the conflict, with effort to conciliate fairly to reach an amicable outcome to the workers’ grievances and the workplace injustice. In the employment relationship, there are two sides to a dispute. Its resolution requires considerable trust. It is not good for the future employment relationship to take legal action against your workforce and their union.

Waters (1982) identifies one erroneous employer and government belief: ‘paradoxically, a key factor in producing strikes in Australia is the belief that they can be eliminated.’ Strikes are inevitable in a system with the contractual employment of productive labour, where employers and workers at times do not have common interests, and that 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, as a ‘structural antagonism between capital and labour’.

I now deal with key areas of concern with the Rudd position.

Outlawing pattern bargaining strikes is unreasonable

In the last decade collective bargaining has been restricted and legally enforced to the single enterprise. This restriction to confine agreements only to single businesses is strongly contested by unions. Over 100 years unions had the choice of industry, sector, or pattern bargaining campaigns around awards, Pattern or industry bargaining was widely accepted as pragmatic and chosen by many industrial parties, as well as enterprise bargaining.

WorkChoices specifically makes pattern bargaining, ‘seeking common wages and conditions’ across a number of employers unlawful. A ballot for protected action pattern bargaining PAB is not allowed. Outlawing pattern bargaining across an industry severely restricts the national union campaigns.

‘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. ACIRRT (2002)

The industrial parties should not be denied freedom of choice as to their bargaining level. Earlier the ILO criticised Australia because:

‘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 1996, 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). With respect to the right to strike in support of a multi-employer, industry-wide agreement for all practical purposes is prohibited’ (ILO 2001).

In two specific industries, building and manufacturing with a 150-year industry history that had employer support outlawing union pattern or industry bargaining flies in the face of industrial relations reality, where there is always a mixture of enterprise and industry bargaining as chosen by the parties. Building and manufacturing industry bargaining contributed more to productivity than enterprise or individual bargaining.

In contrast, employers in industry and national employer 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 need to combine in solidarity with other workers for common industry agendas. This is one of the reasons workers established unions. Outlawing pattern bargaining industrial action provides employers with a weapon undermining unionism. It has to be removed to allow parties some choice. ALP MPs properly criticised the Howard government’s excessiveness on this issue. But now in the Rudd speech apparently 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; an unjustifiable restriction on collective bargaining. For the ALP now to maintain that collective ‘pattern or industry’ industrial action is to be unlawful maintains the Howard government’s unreasonable restrictions and one of the worst in the world. Even the US does not outlaw pattern bargaining.

Restrictive compulsory secret ballots unjustified

WorkChoices severely restricts protected industrial action by making it compulsory for unions to comply with complex legal process requirements for a secret ballot, PAB. Formerly a secret ballot was voluntary or able to be ordered by the AIRC. Now, before any industrial action is protected from legal sanctions, 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 the processes to determine whether unions comply with the many requirements before the strike is legal. 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). There was extensive litigation against the lawfulness of strikes and contrary judicial interpretations with artificial restrictions making what was on the face of it protected action to unlawful action, where the union is fined.

Now employer legal opportunity is more so under WorkChoices. In the first year, legal challenge to PAB’s is commonplace and unions find it tactically difficult to comply. It is really incredible that on the principle that strikes have to be democratic determined by the workers, that the employer has the legal power to intervene over process technicalities to stop such an action.

The former AIRC system was excessively legalistic. Juridification of industrial relations is even more a determining WorkChoices feature. Employer legal firms urging judicial ‘black letter law’ interpretations, with narrow strict legalism about ‘good faith’ bargaining or the lack thereof by unions and readily pursues sanctions against industrial action. The same argument applies to Rudd.

However, some unions have achieved success over the many hurdles for protected action and the ballots when voted on receive worker support. (The details are not here given but available). Employers know that the strike weapon as a bargaining means is most difficult to implement in practice with the PAB. A Rudd government should not replicate the regime.

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. Strikes occur with fair and democratic votes. Union leaders do not force workers to strike: that is a conservative myth (Hyman 1986, Kelly 1998). Democratic decision-making is important but no evidence compels the ‘lack of democracy’ allegation. The same applies to Kevin Rudd.

The ILO accepts balloting, but not to deny effective organisation of industrial action (Novitz 2003).

Prohibiting all strikes during the term of an agreement questionable

Dispute settling over the unfair exercise of management powers at work during the term of the agreement are under WorkChoices further loaded for the employer.

WorkChoices 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 in Emwest that 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 who 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 run the risk of penalty when members insist on action in response to an employer’s unfair practices that are not able to be solved through the now more restrictive dispute settling procedures. Such industrial action during the agreement period is penalisable. Here no right to strike exists and its absoluteness is unreasonable.

Such total prohibition 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. I do not deal with here the Government’s prosecution of 107 Perth building workers for going on strike after their shop steward was dismissed, but see the details in Australian Institute of Employment Rights www.aierights.com.au

One instance is industrial action in political protest to defend economic and social interests (Novitz 2003; White 2005a). In a democracy, there ought to be some scope for limited political protests to defend their broad social and economic interests. Short political protests with strike action have justification in industrial relations terms and in wider 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 the ACTU Rallies against WorkChoices unlawful, exposing the workers to dismissal and unions to face orders not to attend. Obviously, ‘purely political’ strikes that are coercive, threatening a government would by all governments not be lawful.

Compulsory docking of four hours pay

Pay can obviously be withheld. Under WorkChoices no strike pay is an obsession, and is an offence for an employer to pay for time lost for a strike, with many excessive details that a Rudd government ought not to maintain, e.g. WorkChoices says it has to be four hours.

One excessive example was where workers were working and with a legal overtime ban, but docked a full week’s pay. ACTU Secretary Greg Combet 8/9/2006 criticised PM Howard's support for this company that used WorkChoices to dock a full week's pay from more than 50 manufacturing workers because the workers had a ban on overtime in support of a collective agreement. ‘Is Mr Howard denying they introduced harsh new provisions in the 2006 WorkChoices laws that require workers to be docked a minimum of four hours pay for any industrial action - even if it only lasts for 15 minutes? It is outrageous that ordinary Australian workers should be docked pay for hours they have worked. I think it is shameful that PM Howard should support and encourage employers to engage in this type of behaviour when all these workers were trying to do is secure a collective agreement.’ These workers were eventually vindicated and paid.

Workers do accept their pay will be docked for lost time in industrial action. But in some cases workers feel aggrieved in the specific instances where e.g. it is proved a strike is clearly provoked unnecessarily or any other reason on the merits when there may be an exceptional case for strike pay…at least such issue could be put to the umpire, rather than the current repressive scheme.

Protecting the right to strike

WorkChoices almost extinguishes the right to strike. This is a clear break with century-old recognition within the Australian industrial relations system of workers’ collective rights to exercise economic pressure through promising to, or actually undertaking, industrial action as a last resort (if not lawful tolerated) in order to balance the unequal bargaining powers between employers and workers. Workers and their unions in dispute are now in Australia liable to be ordered back to work, fined, sued and even criminalised, with increased penalties.

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.’

‘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.’

This argument from Clyde Cameron, Labor Minister in the Whitlam government applies to PM Howard.

With higher penalties as weapons for employers and the state to deal with strike action, Howard’s labour law moves away from a right to strike or a tolerance of strikes towards suppression of strikes. Under a Rudd government it should move to a right to strike.

The ACTU’s policy for new collective bargaining rights including the right to strike has community support. NewMatilda and 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.’

Chris White was a union advocate for 27 years with the AWU and LHMU and elected Secretary of the United Trades and Labor Council of South Australia. He is now a labour law researcher in Canberra. He is a long-term ALP member. Comments 18/4/07 whitecd@velocitynet.com.au

References

ABS (2006) Australian Bureau of Statistics Industrial Disputes Cat. No. 6321.0

ACTU (2004-7) www.actu.org.au. Campaign www.yourrightsatwork.com.au 2006 policy on collective bargaining.

ACIRRT (2002) Adam Report No. 35 ‘Pattern bargaining – taking a closer look’ (Australian Centre for Industrial Relations Research and Training, Sydney University, www.acirrt.com)

Ben-Israel R (1998) International Labour Standards: The Case of Freedom to Strike (Kluwer, Deventer).

Cameron C (1970) ‘Industrial protest: the Right to Strike’, University of Adelaide, WEA ‘Social order and the right to dissent’ 27/11/1970 (Australian Parliamentary Library).

Creighton B and Stewart A (2005) Labour Law 4th edition. (Sydney: Federation Press).

Ewing K D (2004) ‘Laws Against Strikes Revisited’, in Barnard C, Deakin S and Morris G editors The Future of Labour Law (Hart Publishing, Oxford, 2004).

Hutson J (1983) Penal Colony to Penal Powers (Sydney: AMFSU).

Hyman R (1986) Strikes (Fontana).

ICTUR (1999 -2004) International Committee on Trade Union Rights. Submissions to Senate Inquiries into WorkChoices; http:// parlinofoweb.aph.gov.au, go to Senate Inquiries for submissions on Bills.

Kelly J (2000) Rethinking Industrial Relations Mobilization, Collectivism and Long Waves (London Routledge.)

McCrystal S (2006) ‘Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices’ (2006) 16(2) The Economics and Labour Relations Review 193.

Novitz T (2003) International and European Protection of the Right to Strike, A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union. (Oxford: Oxford University Press.)

Waters M (1982) Strikes in Australia A sociological analysis of industrial conflict (Allen & Unwin, Sydney)

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 Improvement Bill (2005)’ ‘Senate Submission 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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