Are we workers or slaves?

Chris White challenges Kevin Rudd's industrial relations policy. The right to strike is fundamental to the right to freedom of association.

The Howard government has removed the right to strike almost to the point of suppression. It came as a surprise to hear Kevin Rudd picking out strikes as a problem in his speech to the National Press Club on April 17. Rather than ripping up WorkChoices as promised, this partial rollback of Howard’s unfair restrictions on the right to strike is not reasonable. It is a reversal of former Australian Labor Party positions opposing WorkChoices.

The ALP criticised WorkChoices restricting the right to strike. In this article I will give background on the right to strike, argue for the International Labour Organisation 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.

I am not alone in critcising Rudd's partial rollback of WorkChoices. Victorian state secretary of the Electrical Trades Union Dean Mighell is in opposition to the proposed limits on the right to strike and mandatory secret ballots. He told The Age: "We don't want Labor adopting silly IR policies just to be seen to distance themselves from the union movement. I think it is anti-union. To abolish industry-wide agreements is crazy."

Victorian Trades Hall Council secretary Brian Boyd said unions would still push for "sacrosanct" principles on strikes and industry-wide bargaining. "I'm arguing that there's still an unfettered right to strike, no limitations on it; we might want to stop work to give consideration to the Iraq war, for instance," he told The Age.

The strike wave?

Kevin Rudd’s tone is a stance against strikes. He said: "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." But Australia is not going through a 1970s strike wave.

The Australian Bureau of Statistics December 2006 strike statistics were up slightly due to the Australian Council of Trade Unions "National day of Community Protest against WorkChoices" on November 30. However, 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. This represents no threat to the capitalist economy. The targeting of strikes is in stark contrast with workplace reality. While the 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 rightwing Hayek supporters in commercial law. In many quarters it is held up as at least a Platonic element of a robust civil democracy.

Howard politically acts on behalf of corporate lobbying to suppress strikes. He is an ideological zealot. He seeks revenge over the strike wave 40 years ago. The 1970s 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 ideological framework? Is he responding to the pressure from big corporations, and their associations, the Australian Mines and Metals Association, Business Council of Australia, Australian Chamber of Commerce and Industry, Master Builders Association and Australian Industry Group to stop any strike?

With globalisation an unfettered right to strike is needed to achieve balance with the already more powerful global corporations. The balance is to ensure workers have a say in bargaining for their interests. In a democracy freedom is also about the lawful strike. Workers should not be 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 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 erroneous 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 can mean 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;
human rights for freedom of association and collective bargaining;
freedom in a democracy sustaining citizenship and civil society.

In Australia it was not until 1993 that Labor prime minister Paul 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 ILO minimum standards was a basis for such union rights.

ILO principles protecting the right to strike

In the tripartite ILO Constitution it states that "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 1940s … 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.

Labor prime minister Gough 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. These conventions 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 its 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.<.p>

Organisations responsible for defending workers’ socioeconomic 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)

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 co-operation 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.

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".

So what of Kevin Rudd’s speech on April 17 on the right to strike?

Outlawing pattern bargaining strikes is unreasonable

In the past decade, single employer enterprise bargaining is obsessively legally enforced. The Australian Centre for Industrial Relations Research and Training (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.

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 organisations 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.

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 undermines union industry campaigns. Employers should not have this legal anti-union weapon.

Labor MPs criticised 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 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 democratically determined by the workers, that the employer has the legal power to intervene over process technicalities to stop such a ballot. Legal challenge to PABs 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.

The former minister for Workplace Relations Kevin 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." (The Australian, November 29, 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.

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 during the life of an enterprise agreement. 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 here with the government's 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.

 

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 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 penalise.d

Compulsory docking of four hours pay

Under WorkChoices the banning of all strike pay is an obsession with excessive detail. It is an offence for an employer to pay for time lost for a strike. WorkChoices says this is a minimum of 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 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.

Protecting the right to strike

WorkChoices practically 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. As prime minister Rudd could move to the modern era and give ‘firewall’ protection for the right to strike.

The ACTU’s policy for new collective bargaining rights with the right to strike has community support. NewMatilda in its Statement of employment rights: the rights of workers within an efficient and fair industrial relations system by Paul Munro has as point 11:

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 secretary of the UTLC of SA. He lives in Canberra and is an ALP member supporting Kevin Rudd for PM. whitecd@velocitynet.com.au

April 24, 2007

References

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

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

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

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

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 2006 Adelaide Volume 2, p99

White C (2006b) ‘The right to strike removed’ Dissent, No. 21 Spring 2006.

White (2006c) ‘The Perth 2005 The Right to Strike Contest’ Australian Institute of Employment Rights