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Howard makes the 'blue' unlawful

Chris White

"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", said US President Eisenhower.

"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", said Clyde Cameron, a former Labour Minister.

There are many concerns with WorkChoices (WC). Here, I only deal with how Howard is to (almost) extinguish the limited right to strike for workers.

Howard's WC legislation is to be slammed through Parliament to hide outrageous and repressive changes. One change is to make legitimate union industrial action 'unlawful'. There are new penal powers and sanctions against striking workers legitimately pursuing, as a last resort, their workplace and economic interests.

'Blueing' is to be even more risky. Will the Australian 'blue' with the boss be an endangered species? Workers and their unions in dispute, those 'blueing', will be liable to be ordered back to work, fined, sued and even criminalised, with increased penalties. Employers who love power and authority will benefit.

Howard in the election did not raise these further restrictions on the right to strike. Corporate associations to take away the protections necessary for the effective right to strike lobbied Minister Andrews. And this during a low strike era.

The government ads say 'We won't take away the right to strike' but this is 'spin'. Here are 8 further limits on the right to strike. The devil will be in the detail.

"Australia started as a penal colony with penal powers against workers acting in unions. Now in the 21st century penal powers return."

1. Minister Andrews himself is to have unbelievable government dictatorial power to intervene in 'essential services' to halt strikes. This is now possible by the Industrial Commission or Courts; not the Minister! But his version of 'essential services' is not limited to the army or police, but to cover any corporation and he cites car companies, mining companies and electricity companies. Public sector employment, nurses, teachers and public servants are to be covered. No choice here.

2. New provisions severely restrict basic union rights for industrial action for industry or pattern bargaining. No choice here, as there is no right to strike outside of the single enterprise. Nowhere else in the OECD is pattern or industry or national bargaining unlawful.

3. A small amendment, with wide ramifications, allows third persons affected by industrial action (other than the employer and unions in the dispute) to halt protected legal industrial action. By definition industrial action affects third parties in some way. So other businesses affected or other persons, such as students or patients can stop legitimate union protected bargaining.

4. Unions pursue claims that encourage unionism and many employers agree. Now employers and workers are to be banned from reaching agreement on such claims. No choice here. It is to be unlawful to pursue legitimate workplace matters by industrial action.

5. The Australian Industrial Relations Commission, which will all but be gutted of its 100-year-old responsibility to prevent and settle disputes, will only have more powers to halt industrial action 'not protected'. Employers have more availability to go to the courts for labour injunctions to halt industrial action. But employers retain their power to easily lock-out workers.

6. Compulsory secret ballots have to be conducted before there is lawful protected action. They are now voluntary. The new compulsory ballot requirements are so prescriptively complex that it will be most difficult to implement a valid ballot. In practice this will severely restrict protected action in enterprise bargaining. No choice here. No requirement for employers to compulsorily ballot shareholders before locking out their workforce.

7. The already limited right to protected action is narrowed. Any industrial action that is not protected will be penalisable. All industrial action is prohibited during the life of an agreement. No choice here.

8. WC repeals the requirement for the AIRC to issue a s166A certificate before employers can take common law action to recover damages for unprotected industrial action. The ancient common law tort, based on master and servant doctrine, makes all industrial action unlawful. At least the current limited protection enables 72 hours of conciliation in the Industrial Relations Commission to settle the grievances. Now no choice.

The Howard government has already outlawed the right to strike for building and construction unions in legislation slammed through in august and applying retrospectively to catch unions' campaigns. Little debate was allowed in the Senate.

A new building industry police force is operating to 'investigate' workers involved in so-called 'unlawful industrial action'. They have incredible powers. Building workers basic civil rights to silence and not to incriminate yourself have been removed with threat of jail! (details available).

These labour laws do not meet Australia's ILO obligations for protecting the right of workers to collectively bargaining and exercise, without penalty, the right to strike.

Will Howard's attempt to suppress strikes be effective? Historically unions took protest industrial action to defend the right to strike. The right to strike as a human right has been long fought for as an essential freedom of being a unionist, for collective bargaining and to defend and promote the social and economic interests of working people and their families.

Eisenhower defended the right to strike because the abolition of such a right is the loss of a freedom. Freedom for industrial action without penalties.

Australia started as a penal colony with penal powers against workers acting in unions. Now in the 21st century penal powers return. This time in a globalised corporate world and a government on the extreme right wing ready to suppress strikes.

Australians do not want to go to the penal days of masters and servants, or slaves, with forced labour.

No choice, no fair go. Will the long tradition of the Australian 'blue' be suppressed? Or will the 'blue' survive?


Chris White Flinders University is researching "The Right to Strike in Australia?" Contact 0418 830297 References available.


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