Inside the tent

The right to strike in Australia


Chris White

Industrial relations politics .... this time with power

The Howard government again moves to implement radical right industrial relations policies - this time with Senate power. Contested industrial relations politics are high on the public agenda. There are many important industrial relations issues. This paper is about the international protection of the right to strike in the International Labour Organisation (ILO) standards. The questionable application to Australian labour law is analysed. The limitations on the scope of the right to strike, protected action under the Workplace Relations Act (1996), WR Act (1996) and how recent politics has seen a failure to comply with minimum ILO workplace standards is described.

The Howard government's proposed new labour laws in 2006 further breached ILO obligations. These include the Better Bargaining Bill (2005) (BB Bill) and the repressive regime for unions in the Building and Construction Industry Improvement Bill (2005) (BCII Bill), as well as pre-strike ballots and further radical right-wing proposals. The Minister of Workplace Relations, Kevin Andrews (Minister Andrews), employs 'spin' in denying any move to strip back the right to strike. But it is clear that the legal right to strike is under severe attack, to the point of suppression. This is an important, contestable industrial relations issue. The erosion of collective worker freedoms is alarming in a democracy.

Into the ILO tent

The ILO is the United Nations tripartite agency responsible for setting and monitoring basic minimum workplace standards - International Labour Standards (ILS). Australia voluntarily agreed to and is bound to implement ILS in Australian labour law, including the international jurisprudence protecting the right to strike from legal sanctions.

Minister Andrews in the June 2005 ILO Annual Conference took Australia back within the ILO, as Australia was elected on the ILO Governing Council representing the Asia-Pacific region. His public recognition of the ILO has given impetus to the ILS debate. Minister Andrews said 'I suppose our view is that it is better to be inside the tent rather than outside'.1 What role, other than opposition to ILO standards, is not yet clear. The Howard government has been 'markedly less well disposed to the ILO than its predecessor', ranging from downgrading participation to hostility and contempt (Creighton and Stewart, 2005:65). ACTU President Burrow said it was 'unbelievable' the government was rejoining the governing body of the ILO when it was 'seeking to further undermine freedom of association to collective bargaining'.2 Minister Andrews said he would respond to recent ACTU complaints about Australia's non-compliance with ILS. 3

The ILO, with Australia as a founding member since 1919, is uniquely based on a tripartite structure, where governments, unions and employers have equal status. At the annual International Labour Conference, the ILS are adopted with two-thirds majorities. These international policy agreements represent norms accepted and developed throughout the twentieth century based on industrial relations Realpolitik. Compromises have been reached on basic minimum standards for workforces and employers. The ILO Constitution is based on the consensus that asserts 'labour is not a commodity' and aims for 'social justice' in the workplace. Recognition of worker interests was to be taken into account with other economic goals.4 Union 'freedom of association' is a fundamental ILS and a basic human right.5 Ben-Israel (1988:1-2) explains the freedom to strike:

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 rightÂ…Hence the freedom to strike has emerged as an essential tool for the implementation of such a basic freedom as freedom of association.

The importance of the ILO for employers remains agreement for 'fair competition' by companies in abiding by minimum labour standards, to prevent countries from gaining economic advantage in the labour market by the exploitation of their workforce. For governments, managing the 'labour problems' and ensuring stability for capitalist development remains paramount.

Novitz's International and European Protection of the Right to Strike (2003) is relied on, as it is a comprehensive analysis of the ILO right to strike standards in international law, ILO and European jurisprudence. Creighton is one of Australia's foremost ILO scholars, the other main reference. Novitz (2003: chapters 5, 8, 11-14) and Creighton (1995, 1998, 2004) explain the tripartite agreed resolutions when setting ILO standards. This form of democratic participation in the policy process provides an important degree of global legitimacy in standards for settling strikes. Legal accommodation of workers using bargaining power through the threat of withdrawing labour has been accepted internationally. The right to strike standards to assist union collective bargaining have been enduring. This is notwithstanding varying developments of the right to strike, since the post-fascism period and during the Cold War period. In recognising and responding to the current corporate globalisation era, the 1998 ILO Declaration of Fundamental Principles and Rights at Work agreed to core labour rights, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. These ILO principles have contemporary relevance (Novitz, 2003:4-30; 95-123). This is notwithstanding some institutional crisis of the application of standards.6 Australia 'has rarely encountered serious compliance problems in relation to those Conventions it has managed to ratify' (Creighton, 1995).7 However, (non) compliance over the last decade has become an issue.

The current era of corporate globalisation determines much of Australia's industrial relations policies and ideologies.8 The dominant economic neo-liberal agenda expresses hostility to any (perceived) interference with global market corporate forces. These corporate forces challenge ILO standards (Creighton, 2004:262-6), including the right to strike. So ILS compliance or the lack thereof is on the ILO and domestic agenda.

Since 1996, this government's industrial relations politics have not been tripartite, but markedly hostile to unionism and to the ACTU, a strong reversal of the Accord union co-operation under the Hawke and Keating Labor governments. The Howard government is openly supportive of corporate interests and the business industrial relations lobby. The government's ministers of Workplace Relations embrace the ideology of the radical New Right and speak at the H R Nicholls Society.9 The Prime Minister has for thirty years been politically active in his version of industrial relations reform, ideologically obsessed with rolling back union power.10 The reduction of union influence is Howard's main pre-occupation. This is a much more explicit feature of the government's 2005 policy. The 'spin' is that he is not taking away the right to strike, but we shall see.

More control of strikes

A key feature of the Howard government's 2005 legislative regime is to further increase legal command and control over strikes. This curtailment is, we shall see, (almost) to the point of suppression. But the last 20 years is an era when strikes have declined to an historic low, 57 in 2003 since the peak in 1974 of 1200 per thousand employees.11 Strike waves are not a public or industrial relations problem. Industrial conflict is not significant, relative to the 1970s. In 2003, 88 per cent of stoppages lasted two days or less and only 56 lasted for five days or more. The targeting of strikes with increased penalties is in stark contrast with this industrial relations reality.

Lockouts are included in the statistics as they are legal protected employer action under the WR Act> (1996). Briggs (2003) shows an upsurge in employer industrial action, after O'Connor's 1999 bitter 9-month lockout of meatworkers. Employers lock out employees to lower wages when negotiating union agreements (especially in manufacturing) and by enforcing individual contracts, Australian Workplace Agreements (AWAs). Lockouts are half of the long disputes, a duration not seen since the Depression or the great lockouts of the 1890s.

Even if there was a strike wave, there are strong arguments and history shows that legal suppression is not warranted in a democracy.12 In the 1970s, penal sanctions against strikes did not work ('dead letters'). Rather, differing regulatory strategies are more equitable and effective to assist preventing and solving deeply held workplace grievances that lead to strikes.

In this low strike era, the government's response for more prescriptive legal regulation of workplace conflict and restriction of the legal right to strike has been a second order practical industrial relations issue: but not now. 13

The 2004 election, fuelled by New Right ideology and sectional corporate interests, pushed this renewed strike focus. A reasonable conclusion about the government's 2005 strike preoccupation is that it is ideological, only for increasing corporate power and marks a politically driven obsession to reverse any perceived union gains from the 1960s and 1970s campaigns. Ideological arguments revisit historic wins and defeats for either capital or labour. The government's ideological challenge goes further back - 100 years to reverse the political consensus over industrial relations regulatory norms in the Australian Constitution that established our unique Conciliation and Arbitration system for the prevention and settlement of disputes (Howe, 2005).

Workplace Relations ministers respond to contemporary corporate interests. They comment adversely against specific union campaigns and strikes, support employers' interests in disputes; intervene in industrial relations cases in the AIRC, Federal Court and High Court with strong advocacy against unions by government lawyers and by the Commonwealth Department of Employment and Workplace Relations, DEWR and the Office of Employment Advocate (OEA). Ministers respond to business lobbying to further deregulate the protections for workers, 'freeing up the market.'14 These interventions are marked by political attacks against the Labor opposition.15 Minister Andrews is no different, albeit with a 'softly, softly' spin profile.16 He praised and announced policies for employers in the Building and Construction Industry with a speech to the Master Builders Association and to the Australian Mines and Minerals Association, provocatively announcing new tougher penalties against unions for soon to be determined 'unlawful strikes' in the Building and Construction Improvement (Consequential and Transitional) Bill.17

Key aspects of this domestic political focus involve debating ILO standards, 'within the tent.' The application (or not) of Australian labour law in compliance with international labour law jurisprudence to protect the right to strike is the issue for public debate.

ILO right to strike standards

Novitz (2003:368) concludes on the contemporary relevance of and the strengths of ILO jurisprudence and the right to strike principles: "there remains scope for the endorsement of ILO principles, based on an appreciation of the right to strike as a civil, political, and socio-economic entitlement".

The legal right to strike is acknowledged and upheld internationally. ILO principles accept the right to strike as a counter-balancing power necessary for unions in a capitalist market economy to bargain with employers and to defend the social and economic interests of workers. 'Labour is not a commodity', workers are entitled to 'freedom from forced labour' and workers should not be compelled by legal sanctions to work are ILO themes. Novitz (2003) explains important but varying justifications, as they arise from diverse sources. The principal justification is socio-economic, with the right to strike as being essential to a union's freedom of association and collective bargaining rights to achieve fair agreements on wages and conditions. This has a broad scope to defend and extend not only workers' occupational interests but also social and economic interests. Justification at other levels promotes the right to strike as a civil right based on citizenship principles, as a 'human right' and 'freedom of association'.18 The right to strike involves a political right based on democratic principles, acceptance of 'freedom of speech'. Like other democratic rights, this exercise of political freedom has varying justifications based on representative, participatory and deliberative democratic principles. The acceptance of fundamental democratic principles are important. The problem is their legislative implementation.

Novitz (2003) describes the ILO international instruments, the history of the debates leading to the Conventions, and the role played by the ILO supervisory bodies monitoring and responding to complaints about the implementation of ILS. 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) in their monitoring role make clear the obligations of member states. They give effect to the two main Conventions, (relevant to this paper), 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.19 They were highlighted by the ILO Declaration on the Fundamental Principles and Rights at Work 1998, agreed to by the Howard government's Minister Reith.20 The jurisprudence from the committees provide the principles for the expected implementation of what is required to protect the right to strike, integral to uphold these human rights Conventions.

The UN's Universal Declaration of Human Rights and their International Covenants contain important obligations for freedom of association for union purposes. Article 8, paragraph 1(d) of the ILO's International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966, (agreed to by Australia in 1975) provides for "The right to strike, provided it is exercised in conformity with the laws of the particular country".21

The UN Committee on Economic, Social and Cultural Rights (CESCR) in 2002 recommended Australia take steps to not prohibit the right to strike. The UN's International Covenant on Civil and Political Rights 1966 (ICCPR), in Article 22(3) makes clear that countries are not to prejudice the guarantees in the Conventions.

The ILO CEACR emphasised their key position on the right to strike in 1983.22

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.

Novitz (2003) canvasses ILO supervisory bodies re-iterating the socio-economic breadth of these principles every year when monitoring implementation and in response to complaints about government or employers breaching such obligations. The CEACR said in 2002:

Organisations responsible for defending workers' socio-economic and occupational interests shouldÂ… 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.23

The 2004 Australian and US-Free Trade Agreement includes a commitment to abide by ILO minimum standards.24 Presumably, like other labour issues and free trade, implementation is to be largely ignored and not enforced. Whether Minister Andrews intervenes to support ILS against China's exploitation of its workforce, as an aspect of the proposed China-Australia Free Trade Agreement, is most relevant. This is not out of the question as human rights issues are raised with China. A level playing field for trade, fair and free, should be based on ILS.

Form of compliance to protect the right to strike

It is instructive to record that the government has accepted some legitimacy of the ILO right to strike. Labour law academics had argued for years for strike laws to comply with ILS, as has the ACTU.25 Employers conceded the practical reality of strikes but only for enterprise bargaining with no right to strike during the Certified Agreement. The WR Act (1996) 'protected action' regime complies in some fundamental respects with the ILO standards. Individual unionists have freedom from discrimination in an enterprise bargaining protected strike and cannot be dismissed, victimised or disciplined.26 Their union or union officials are not subject to orders to cease industrial action by a section 127 order of the WR Act (1996), or by common law labour injunctions.27 Nor can unions be sued for damages at common law in tort, equity or contract or risk other penalties.28

Union protected action only holds and is secure so long as there is strict legal compliance with the complex requirements of the protected action provisions.29 In industrial relations practice, unions run considerable risks that strikes are unprotected. It is not hard to make an error at law or with the process requirements. Employers aggressively litigate the legal boundaries of what is protected and unprotected action raising many legal technicalities. Protected action is limited by judicial opinion with uncertainty from the High Court in Electrolux.30 There are sanctions against any 'unprotected' strikes.

While this form of protected action of the right to strike is very limited, it demonstrates a degree of compliance with ILO standards. Indeed, Minister of Workplace Relations Reith in 1996 continued the Keating Labor government's 1993 political 'tripartite deal' over broad parameters and principles and retained the legal right to strike as protected action:31

For the Coalition Parties to recognise the right to strike was a significant policy shift, but a necessary policy shift, given that we ourselves had been encouraging the system to move towards an enterprise focus. In the context of a bargaining system a right to strike in prescribed limited circumstances is both reasonable and consistent with good international practice.

So the WR Act (1996) complies to a degree, but leaves a range of union conduct unprotected that in ILO terms ought to be protected.

We now go to these details of the failure to comply with the ILO.

Australian labour law breaches ILO obligations

The ILO has found Australian labour law breaches ILS, in the following ways.

Restrictions on pattern and industry bargaining

The ILO (1996, para 490) CEACR reports and CFA decisions have found and re-iterated that Australia's policies and the WR Act (1996) do not comply with freedom of association and free collective bargaining as they restrict industrial action for pattern bargaining or industry or national bargaining. The WR Act (1996) section 170MI confines protection only during bargaining periods for enterprise bargaining agreements for employees in a single business. Australia is the only OECD country that makes strikes for industry or multi-employer agreements unlawful. 32 Industry collective bargaining and industry awards has been a feature of our industrial relations for over 100 years, but severely limited since 1996. As such, the WR Act (1996) fails to allow the industrial parties freedom of choice as to their bargaining level. For unions it fails the freedom of association test. Such a choice, as exercised in the past through practical agreements and awards, meant industry or pattern or national bargaining was voluntary and widely accepted as pragmatic and positive by industrial parties. For national unions it is essential for workers acting in solidarity with other workers for a joint industrial agenda, one of the reasons workers establish unions. Employers in employer associations act together in their interests. Yet the law protects only enterprise bargaining, not the ILO's collective bargaining. ACIRRT demonstrates that throughout the world there is some mix of industry and workplace bargaining:

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.33

The industrial parties do not have choice, not freely determining the form in which they are determining their workplace conditions.

Unions not recognised

In order for there to be organised industrial action, there has to be legal guarantees for the freedom of association for unions to be recognised. However, under the WR Act (1996) there is not an effective legal recognition system for unions, here the legal right for union collective bargaining. This is because there is no legal mechanism to require employers to recognise the unions in bargaining. Employers can refuse to 'bargain in good faith'. Not recognising unions is contrary to ILO Conventions (McCallum, 2002).

AWAs override collective agreements

Labour legislation fails to promote fully ILO collective bargaining requirements, due to the legal primacy of individual bargaining agreements, AWAs under the WR Act (1996), Sections 170VF.34

Restricted scope of industrial action

The WR Act (1996) does not comply, as it does not allow the strike form or the scope of strikes to be a free choice of workers and their organisations. The ILO freedom of association requires unions to be autonomous from employers and state regulation. Workers and their unions should be able to freely determine their claims, the form of bargaining and the scope for defending and promoting their occupational, economic and social interests.35 The policy restrictions impact both on the strongly held principles of unionism, a voice in and across workplaces and on legitimate action to negotiate over what workers determine are their interests. The autonomy of unions freely to organise, as a feature of the decentralised bargaining system, is a basis for good industrial relations. However, eliminating union conduct for pattern bargaining goes too far. The government displays a political agenda to attack unions mobilising for their lawful social and economic interests across industries. Section 127 of the WR Act (1996), the penal provision first introduced by Minister Reith, allows the AIRC to make orders restraining unprotected industrial action.36 Unprotected strike action can see employers respond legally with interlocutory injunctions and statutory penalties and damages from the Federal Court and common law courts. This section is much litigated, and much contested by unions. It is similar to the earlier 1970s penal provisions, the bans clauses in awards, with complex Commission and Court decisions. Arguably the dichotomy of the 'protected/un-protected' regime breaches ILO jurisprudence.

Protection against the common law?

Workers and unions engaged in legitimate industrial action are at great risk against the common law weapon of tort used by employers. As we saw, there is the strength of protected action against unions being sued in tort at common law, but limited only to enterprise bargaining. Common law is available for employers against any industrial action not protected. While the common law doctrine against strikes was rarely used in Australia for 70 years due to our conciliation and arbitration system preventing and settling strikes, there has been a resurgence of this ancient employer's weapon, with greater use in the last 30 years. This contrasts with the immunity for industrial action gained by unions in the UK from common law tort action as early as 1906.

The application by common law judges of tort and contract law that makes strikes unlawful is based on the 18th century master and servant legal norms of status, where no disobedience was allowed (Conlon, 1992). These norms decree industrial action unlawful as such; the strike legally is seen as a breach of employment contract (a fiction); and civil liability occurs by the torts of interference with contractual relationships; the tort of conspiracy; the tort of intimidation and the tort of causing loss by unlawful means.37 Unions organising a strike risk their action being unprotected and subject to the common law labour interlocutory injunction that halts the industrial action. The employer wins. Unions do not accept that they commit such civil wrongs. Common law judges decisively intervene for the employers and make unions liable for crippling damages. The ILO in 1991 criticised the Hawke government and company use of the common law with damages of $6.5 million against the Pilots engaged in a controversial enterprise bargaining dispute for higher wages but outside of the Accord.38 Although the Committee on Freedom of Association did not uphold the Federation's complaint, it said it could not view with equanimity a set of legal rules which:

1. appears to treat virtually all industrial action as a breach of contract on the part of those who participate therein;
2. makes any trade union or official thereof who instigates such breaches of contract liable in damages for any losses incurred by the employer in consequences of their actions;
3. enables an employer faced with such action to obtain an injunction to prevent the commencement (or continuation) of the unlawful conduct.
The cumulative effect of such provisions could be to deprive workers of the capacity lawfully to take strike action to promote and defend their economic and social interests.39

The ILO continues to stress that an unacceptable outcome of unprotected industrial action is the use or threat of the common law against the union. This unduly undermines the right to strike. 40 Creighton (1998) found no common law actions taken by employers against union strikes from 1920s to the 1970s. Portus (1973, 1979) reflected the industrial relations consensus: 'Although strikes frequently give rise to civil liability, there is similarly a reluctance by employers to take civil action, when the strike was over, as it would give rise to bitterness in the future employment relationship.'

But in this era, employers take tort actions against unions. Consequently, the policy of immunity from tort law was argued. In the 1970s, South Australian industrial relations controversies over employers using common law against unions resulted in attempts to ensure the industrial relations commission, and not the common law courts, prevented and settled strikes. Such debates lead in 1983 to the SA legal immunity for industrial action from the common law. Nearly all States have now similar immunity. The New Right championed the use of the common law damages against striking unionists in the Dollar Sweets case (Costello, 1986). At the Federal government level, after failed attempts by the Whitlam and Hawke Labor governments due to opposition by Liberal dominated Senates, some procedural immunity was introduced in 1988. This is the WR Act (1996) Section 166A, that the AIRC and not the common law courts are to prevent and settle disputes. But rather than ensuring this, the section allows only a 72-hour period for such AIRC conciliation before an employer application to common law civil courts can be made.41 It is an inadequate protection for the right to strike. Minister Andrews may try to remove it in 2005.

The common law makes much union picketing unlawful.42 This unduly restricts freedom for unions to organise effectively. The common law injunction stops picketing. Ancient torts of 'watching and besetting' make unionists liable.

Trade Practices law breach

The Trade Practices Act (1974) s 45D renders unlawful a wide range of union solidarity, sympathy or secondary boycotts. This is even when the primary industrial action was lawful as protected action. The use of trade practice law penalties are against ILO right to strike standards.43 There are strong policy arguments that the labour market should be taken out of competition (Collins, 2003; Callus, 2003). The ILO has requested the repeal of s45D. Waterfront union action that impacts on overseas trade is unlawful and a constraint on the MUA to get solidarity from the International Transport Workers Federation and is contrary to the ILO's right to strike.44

Suspending protected action

The AIRC under the WR Act (1996) Section 170MW(3) has power to suspend lawful protected action during a bargaining period where it threatens to (a) 'endanger the life, the personal safety or health, or the welfare, of the population or part of it; or (b) to cause significant damage to the Australian economy or an important part of it'. Such suspension can result in the union industrial action becoming unlawful and subject to penalties. This is some recognition of the ILO's notion that some curtailment in 'essential services' narrowly defined, i.e. some senior public servants and police and the army are in essential services without a right to strike (Novitz, 2003:310-313). However, the width of this section means it is not in compliance with the ILO.45 It is important that essential services are strictly confined, and do not extend, for example, to the mining and energy industry which propose no-strike provisions. 46

Prohibiting political protest

The outlawing of the right for short political protest strikes for workers and unions is in breach of ILO jurisprudence. Based on freedom of association, the right to politically protest and right for political expression to defend or advance industrial, social and economic policies, is integral to a functioning democracy, allowing a voice to workers. Novitz (2003) argues that the lawful right to politically protest with industrial action is supported by ILO jurisprudence.47 The strike as a short protest political action to influence government policy is to be protected, but not a 'purely political' strike.48 However, Australian judicial opinion declares most political protest strikes unprotected. Arguably legal sanctions against protest strikes in a democracy should not apply. White (2005) cites Novitz's analysis of union struggles against repressive industrial laws and anti-worker government social programmes that have been made illegal by governments, but later determined by the ILO to be within ILS. Australia's current legal restrictions even apply to unionists protesting against repressive industrial amendments that remove workers' industrial rights. It denies the right to strike to defend social and economic interests.

The High Court's freedom of political communication as a facet of democratic government does not extend to industrial action. Doyle (1995) criticises this High Court limitation of the freedom of political views to words and not action as untenable. The case is made for industrial action involved in political protest to be covered by freedom of speech. But this is not likely from the High Court that in Electrolux more securely cements labour law denying industrial action with political objectives.49

Penalties on individuals

The WR Act (1996) penalties for unprotected action apply to individual workers, victimisation and dismissal and the withdrawal of social security payments during a strike.50 These do not comply with ILO standards. Other penalties on individual workers on strike being sued for breach of contract, being sued in tort, or fined are less likely, for obvious industrial relations reasons.

Still more sanctions and crimes

Other sanctions against industrial action not in ILO compliance include:

· the employment of replacement strikers to break a strike;51

· restrictions on strike action over international trade and commerce;52

· prohibiting strike action making an employer pay for time lost (workers lose pay; but this should not under ILO jurisprudence be unfairly applied); 53

· criminal sanctions in the Crimes Act (1914);54

· and State 'essential services' legislation, too wide to meet ILO standards.55

Contested debates

These past breaches based on ILO determinations should be seriously embarrassing for the Howard government. Prior to 1996, Australia basically complied with ILS (Creighton, 1995, 1998), with in most instances employment rights better than the international minimums. Creighton and Stewart (2005:81) have argued 'in the future, further amendments to the federal legislation could be based, in part at least, on the need to give effect to the findings of the ILO's supervisory bodies in relation to various aspects of the WR Act (1996) ' and '... mean labour law and practice in Australia must increasingly conform to the norms of the international community, whether xenophobic politicians and commentators like it or not', (Creighton, 2004).

Ministers and DEWR stonewall on these ILO breach issues, asserting the right to strike is not so restricted. Alternatively, it is asserted these are not breaches, but rather the issues are the subject of on going dialogue between the ILO and the government. The International Committee for Trade Union Rights (ICTUR) replies that the government provides only excuses and not valid responses, and is not complying with ILO processes.56 The government's responses are deliberately flouting ILO obligations for political reasons. Such a stance can be named as reactionary. It undermines fundamental worker freedoms.

A key feature of the government's new 2006 industrial relations regime is to make current legitimate union industrial action unlawful. This is the reverse of freedom of association and most serious. Unions will more than ever before run considerable legal risks that industrial action is unlawful and subject to an even greater array of powerful legal sanctions. This is distressing for workers exercising freedom of association. As citizens, basic democratic freedoms should apply. When measured against ILO principles, not only unions and Labor politicians, but also academic criticisms argue for labour law reform complying with ILS. 57

The Australian contest over ILS is on traditional party political lines. Minister Andrews' speeches are full of 'spin' and political rhetoric attacking Beazley. Minister Andrews asserts (unsubstantiated and contested) that his industrial relations reforms are for the economy, for higher productivity and for a greater choice for employers and employees to decide issues at work without third party interference. But with the government using its financial funding power to force its industrial relations agenda and its 2005 legislative programme, it is the government that is the third party interfering in the workplace with a repressive command and control regime.

Since 1999, there has been in Liberal Party ranks and their corporate backers a political frustration in not further changing radically labour law beyond the WR Act (1996). Minister Reith's 1999 'second-wave' of workplace changes, after widespread community concern and public campaigns by unions and community groups and Labor, Democrats and Greens, were defeated in the Senate. Ministers Abbott and Andrews then repeated the 1999 changes by introducing many individual Bills. They were mostly defeated in the Senate, for sound industrial relations reasons. Now the government has an accumulation of past industrial relations proposals from built up lobbying and pressure from the political leaders of employer associations. The New Right backed by the media, not satisfied with the Howard's 26 May 2005 reform announcements to the 1996 system, agitate for total freedom for corporations in the global capitalist market, like it was in the nineteenth century.

The details of the government's full agenda were not available at the time of writing. There is no doubt that the 'devil will be in the detail'. References to earlier government Bills and announced policies are used.

Minister Andrews asserts he has 'ruled out stripping unions of the right to strike'.58 We shall see.

More breaches of the ILO right to strike

They include in summary (known in May 2005):

The Better Bargaining Bill

(2005) re-introduces more prescriptive provisions with stricter legal pre-conditions on protected action.59

(a) Suspension of protected action

The new provision makes it easier for union protected action to be suspended by the AIRC, in spin language a 'cooling off'. Such suspension leaves any industrial action unprotected, liable for legislative penalties or common law damages.

The reason for tightening up is not made clear, other than for 'stronger laws in relation to industrial action'. The industrial relations reality is that there have not been many suspension applications, with a very small number, 43 in 2002-3 as against 15,000 applications for bargaining periods coming to the AIRC.60 Under section 170MW(3), the AIRC can terminate industrial action and arbitrate in intractable disputes.61

The suspension changes have been heralded since 1999. Democrats Senator Murray repeatedly argued 'it is difficult for the government to advocate a much greater tightening up of this area of industrial disputes, when it is simultaneously boasting that Australia has the lowest level of industrial disputation in eighty years. Industrial disputation is an essential part of the bargaining and market process, and parties to disputation must be given the opportunity to work matters through.'62

The AMWU 'Campaign 2000' saw government intervention to curtail union bargaining in a Bill for 'cooling off to enable negotiations without industrial action' and defeated in the Senate.63 The next attempt was in 2002, the (so-called) Genuine Bargaining Bill.64 Minister Abbott accepted some Senate amendments. The AIRC now has more prescriptive powers to suspend protected action bargaining that 'may assist the parties to reach agreement'. Consequently, it is difficult to appreciate why a more detailed regime for suspension of union bargaining rights is so urgent and required.65 Union protected action or the threat thereof in bargaining is weakened if unions cannot back up their ability to successfully negotiate acceptable terms. The current AIRC 'cooling off' powers are already too wide as the ILO standard has a narrow definition of an 'essential service', so as not to restrict the right to strike.66

Minister Andrews says his 2005 proposals only give an additional AIRC discretion to stop strikes. But this can only restrict further the effectiveness of union economic pressure. Existing lawful industrial action will become unlawful. The ACTU argued this suspension of bargaining periods is simply to remove unions' bargaining strength, while leaving the employer free to refuse to continue to negotiate genuinely or not at all.

(b) Third party intervention to stop strikes

Minister Andrews proposes a new power for third parties, not the employer or employees involved, affected by industrial action to apply to the AIRC to suspend protected action. As any business deals with a third party, the outcome would make union protected action unlawful and subject to sanctions. This small but most significant amendment is not part of labour law for sound reasons. There are unacceptably wide-ranging possibilities in legally allowing third parties significantly harmed by the strike to intervene in the AIRC to stop strikes. Strikes by definition almost always involve some harm, have some economic impact and apply some pressure, as a last resort.68 This new criteria is unprecedented in an industrial relations system where the employers and unions are supposed to freely collectively bargain, each with industrial weapons of the strike and lock-out, to reach agreement. Third party intervention adds into industrial disputes an unnecessary meddling factor. All kinds of persons other than the industrial parties in dispute, e.g. ideologues and the politically motivated, can apply to stop protected action. Interventions by other businesses or members of the public affected can complicate the settlement of the dispute, possibly making it worse, but again favouring the employer's interests. Forcing the AIRC to have to assess factors affecting third parties over the direct parties is simply not warranted. The outcome of strengthening the employer's power at the expense of the freedom of workers to collectively bargain without penalty is not justified. Better bargaining for whom?

Minister Andrews supported Minister for Education Nelson's response to legitimate higher education union bargaining with the threat of allowing students affected by such disputes to intervene to stop bans.69 Minister Andrews attacked workers in the public sector, nurses, community workers and teachers. The ACTU responded that this was 'a spiteful proposal of the Government's repression of industrial action for the caring professions, nurses, teachers and others that portrays them as wanting to hurt students and patients.' 70 The government takes notice only of employer lobby groups. One example is allowing the overseas car corporations running on 'just in time' production to intervene in car component disputes, stopping lawful industrial action. Employer lobbying occurs whenever there are such disputes. Minister Abbott called one such component suppliers' strike over the denial of worker entitlements as 'treasonous'!71 This is extreme and unwarranted political language that displays the Minister's political ideology. The ACTU argued an alternative industrial relations strategy of consultation not confrontation.72

O'Neil (2004) understatedly concludes: 'It is difficult to imagine that protected industrial action will not result in some economic damage to third parties and there is at the least the potential for the scope of the immunity offered under protected action to be narrowed by the Bill.'

(c) Prohibition of all strikes during agreement

The BB Bill prohibits industrial action for all reasons during the term of the Certified Agreement. It responded to lobbying by employers to reverses the Emwest decisions.73 There is an argument that the current WR Act (1996) section 170MN proscribing industrial action and denying the right for individuals and unions to strike during the agreement is in breach of ILO principles.74 The Federal Full Court interpreted in a pragmatic industrial relations manner prohibition on industrial action as relating to terms in the actual agreement. It recognised claims, such as here with new redundancy over a restructuring not covered in the Certified Agreement. Unions want the right to bargain in the changed circumstances on the terms of redundancy and should be able to take protected industrial action over new claims.

The preferable view is that which permits and encourages flexibility in the bargaining process. Comprehensive agreements may be desirable in some and perhaps most circumstances. But there may be cases when it will be in the interests of good workplace relations to conclude an agreement on some issues and leave less pressing issues for a subsequent agreement. If any certified agreement, however narrow in its terms, has the effect that industrial action is prohibited generally in respect of the employment relationship to which it applies the result will be effectively to discourage resort to a possible option for the partial resolution of complex industrial negotiations. (French and von Doussa JJ par 37).

The employer lobby read into this decision all manner of fears of unions striking at all times, railing against Victorian union militants. Minister Andrews responded in the BB Bill (2005) with this blanket proscription against any strike. It goes too far in stopping all reasonable extra claims during the life of a Certified Agreement.75 It is most questionable applying international labour law jurisprudence (Novitz, 2003:272, 283).

O'Neil (2004:7) argues: 'the notion that industrial issues are closed for the life of a particular agreement is at odds with the fact that businesses are at liberty to significantly restructure the business during the course of the agreement, which will be responded to by claims from employees and their organisations, an issue also recently acknowledged by the Federal Court in matters pertaining to a restructure of Australia Post.'76

(d) Head office strike restriction

The already limited protected action confined to single employers is to be tightened, changing WR Act (1996) section 170LB(2) and denying protected action against a subsidiary company when bargaining with the principal company and stopping unions from negotiating with the head offices of large corporations.77 This breaches the ILO principle of allowing union choice of bargaining with employers.

(e) Involvement of non-protected workers

One political industrial relations strategy of the Government in 1996 was to undermine the ability of unions to organise workers across employers in an industry or across occupations. This has always been a feature of union organising and not unlawful, but tolerated for over a hundred years. The existing WR Act (1996) section 170MM prohibits protected action involving secondary boycott or with other unions that are not protected. That this section itself has limitations on legitimate union industrial action exposing unions to common law liability is demonstrated by the Full Victorian Supreme Court National Workforce (1997) decision. Discretion to apply the ILO right to strike to overcome the technical breach of section 170MM was not supported on appeal.

This current provision is now to be tightened further to make union industrial action subject to further risks, becoming unprotected if taken in concert with employees of different employers. Protected action would only be allowed to be taken by workers and unions to whom the proposed agreement will apply. O'Neil (2004) understatedly concludes 'it is possible in multiple enterprise bargaining rounds (for collective agreements) that all protected action may be lost for legitimate participants where a few, presumably employees, partake or are otherwise caught up in the 'wrong' industrial action.' 78

(f) Electrolux: uncertainty 'about matters pertaining'

One union claim in the long running, controversial, and hotly contested Electrolux dispute was for Bargaining Agent's Fees, BAFs, a contribution to be paid to the union by non-unionists who receive the benefits of union bargaining, variously described by unions as a 'provision for freeloaders to contribute.' The (defeated) 2003 Better Bargaining Bill included a response to the employer campaign to overturn the Federal Full Court's decision in Electrolux. Subsequently, Parliament passed legislation outlawing the BAF claim. So the 2005 BB Bill does not have to be so pre-occupied 'about matters pertaining.'79

However on Electrolux, the employer campaign and appeal to the High Court case continued, and in a majority 6 to 1, the High Court overturned the Federal Full Court.80 The High Court determined that protected action is only for claims legally 'about matters pertaining to the employment relationship' and legally capable of being certified. This legal interpretation limits the right to strike by restricting its scope and practical operation and making the legal test ambiguous. Some further examination is provided.

The legal issue of what 'pertains to an employment relationship' is complex, technical, and with differing AIRC and judicial opinions as to what claims are covered, (Creighton and Stewart, 2005:100, 212). So predicting what strikes are protected is even more difficult. The Full Federal Court argued for a pragmatic industrial relations response in a system where enterprise bargaining claims backed with protected industrial action require a high degree of certainty. The High Court, with a 'black letter law' interpretation disregarding any realistic industrial relations outcomes, held that industrial action is not protected because the union genuinely believes the claim is about employment. The majority of the High Court narrowly interpreted the BAF saying it did not pertain to the employment relationship and that protected action could not be taken in support of such a 'non pertaining' claim. 'Accordingly, unions in particular need to be very careful as to the basis on which they seek to take protected action. Even if all procedural requirements for taking such action are scrupulously observed, it will be open to an employerÂ…to seek to pick apart the various claims that are being advanced to identify one that is questionable in terms of the certification requirements,' Creighton and Stewart (2005:225).

The High Court makes the practicality of taking union protected action more risky, uncertain and exposed to powerful penalties. Kirby J, in dissent, started from the social policy position that the capacity of the parties to freely negotiate employment conditions was the purpose of the 1996 enterprise bargaining regime, where union protected action could be taken without common law liability. Calling for industrial relations realism, Kirby J argued that union logs of claims are traditionally ambit. It would be 'odd in the extreme' if one clause later found technically not to be 'pertaining to the employment relationship', would invalidate the whole agreement and withdraw the union's legal protection. A high degree of certainty was needed in enterprise bargaining negotiations. A technical legal matter that may take years, as in this case, to resolve through the courts should not remove the immunity for industrial action. The threat of the common law of torts meant a 'grave, even crippling, civil liability for industrial action, determined years later to have been unprotected, is to introduce a serious chilling effect into the negotiations that such organisations can undertake on behalf of their members. It would be a chilling effect inimical to the process of collective bargaining.' (Kirby J 43; 68).

In effect the majority of the High Court adopted a different social policy (although disguised with the 'noble lie' that judges do not make law). This ran counter to ensuring a form of an industrial relations balance of negotiating power between employers and employees. In making union protected action more challengeable from the common law tort weapon, the High Court recognised only employer legal rights. They reduced the scope of the right to strike by making it more vulnerable at law.

Minister Andrews, in response to the outcome of the High Court's decision invalidating thousands of existing Certified Agreements introduced an Agreement Validating Act (2004) AV Act (2004). Employers ran a campaign that agreements may contain 'matters not pertaining' and a series of challenges on union security rights that have seen varying Commission and Court interpretations of Electrolux. The AV Act (2004) is more controversial for what it did not do. Varghese (2004) points out the uncertainty of not knowing what are 'matters pertaining' for the future and the legal status of protected action past and future. The government validated retrospectively past Certified Agreements, but not any past industrial action. This leaves open and available the suing of unions over matters the parties both agreed on and where the industrial action was considered protected at the time. Presumably the policy of the AV Act (2004) is to allow forms of employer vengeance. It did not address the 'serious chilling effect' of future industrial action, meaning unions are subject to civil liability and damages in circumstances where there are many and varied opinions as to what is legal. As the Federal Court said:

If the parties are to make rational and confident decisions about the courses of conduct, they need to know where they stand. It would be inimical to the intended operation of the WR Act (1996) to interpret it in such a way as to make the question whether particular industrial action is 'protected action', and therefore immune from legal liability, depend upon a conclusion concerning a technical matter of lawÂ…As this case demonstrates, that may be a matter about which well-informed people have different views.

The government could have validated past and future protected action, or at least ensured that one clause that may not be legally held to be 'about matters pertaining' did not make industrial action for the agreement unlawful. Uncertainty is one certainly an effect of Electrolux. Employers in their bargaining strategies can more confidently make legal challenges that industrial action is 'not protected' and use the penal powers from the AIRC, the Federal Court and common law Supreme Courts, interlocutory inunctions to stop strikes and fines and damages. One wonders why the 2005 proposals restricting the right to strike are necessary. From Electrolux, there arguably could have been legislation where protected action was more secure, not nearly extinguished.

In 2005 the Extended Prohibition of Compulsory Union Fees (2005) has been introduced to extend the ban on BAFs to the State jurisdictions, arguably in breach of ILO Freedom of Association (O'Neill, 2005.)

(g) Invividual contract bargaining

O'Neil (2004) makes an argument that in individual contract bargaining, AWA, parties can take industrial action. Employers can legally lockout workers to force AWAs, such as occurred for 9 months, the longest lockout since the depression, by O'Connor's meat works (with a series of legal industrial cases ultimately resolved by a section 127 order to cease the lock-out). The BB Bill provides no opportunity for an individual worker or union to apply to suspend such employer AWA lockout bargaining.

(h) Better bargaining for whom?

The BB Bill (2005) is not at all needed, an overkill. All these proposals mark a most serious attack on the right to strike complying with ILO standards. ACTU President Burrow said in 2003: 'This BB Bill effectively seeks to ban the right to strike. There is no evidence to justify the Bill. The level of strikes in Australia is at record lows and long-term productivity growth is at record highs. The Howard Government is again taking the side of employers against workers. The changes would tip the balance in workplaces even further in favour of employers. The basic rights of employees need to be strengthened, not weakened. The government's changes would persecute workers for trying to bargain or to take industrial action over legitimate claims for better wages or workplace conditions.'81

Employer associations support the Howard government's 2005 proposals and continue to repeat attacks on unions, e.g. the ACCI targets 'militancy and strikes as a standard method of doing business' and 'to drive disputes down', even though strikes are at an historic low.

The BB Bill is not all. More restrictions on the right to strike are proposed. A key media item in Howard's May 26th 2005 Plan is compulsory secret ballots before protected action can be taken.

Compulsory pre-strike ballotting

Ballots for industrial action are available now and used by unions to organise bargaining pressure, to show democratic legitimacy, and an indication of the strength of the commitment of employees. Pre-strike ballot provisions for protected action are not compulsory under the WR Act (1996), but discretionary for the AIRC and not often used. Minister Andrews does not cite any cases of abuse of existing provisions. When strikes occur with votes at meetings on the job or by whatever means, the decision is representative of members' freedom of association. There is no evidence to support the assertion that union leaders force workers to strike, a conservative myth used in 'spin'. But in 2005 compulsory pre-strike balloting provisions are to be a condition of protected action. Minister Andrews recycles earlier assertions; the 'spin' is to promote 'democracy'.84 This is the same as in 1999 by Minister Reith and then later Minister Abbott, but rejected in the Senate. Ballots and democratic decision-making are important when organising strikes. No evidence compels the 'lack of democracy' allegation.

The 2005 Bill adds significant restrictive barriers to the prescriptive list of legal prerequisites for protected action. They are so complex, so impractical and onerous, with so much legal documentation of details and potential risks that in practice would deny the effective right to strike. Employers have many opportunities with legal challenges to stop the strike. This assists only employer power. The risk of union protected action being unlawful does not improve democratic decision-making. Such frustration of legitimate industrial action arguably is in breach of the ILO standards. The ILO accepts some balloting as acceptable to promote democratic organisation within unions, but not to deny effective organisation of industrial action (Novitz, 2003:78, 272, 283).

Building and Construction Improvement Bill (2005)

Marr's (2002) First the Verdict The true story of the Building Industry Royal Commission, is an expose of the anti-union bias in the Cole Royal Commission and Dabscheck sees Orwell's 1984 doublethink applying to 'an inquisition into the heresy of unionism'.85 The government's political attack on the militant building unions originally politically motivated by Minister Abbott in 2001 with the 'pretend court, judicial façade' of Cole, now has Minister Andrews and the (so-called in 'spin') Building and Construction Industry Improvement Bill (2003) (BCII Bill). Cole's recommendations were allegedly to 'promote respect for the rule of law'.86 Alongside the WR Act (1996), the Bill establishes a specific legislative regime unfairly targeting building and construction workers and their industrial action. There are new extensive enforcement rules and penalties. It was defeated on the merits in the Senate in 2004.87 Now reintroduced, the BCII Bill (2005) outlaws in practice the right to strike, making current legal industrial action and bargaining unlawful on building sites. This arguably takes Australia further out of compliance with ILO standards, with the Committee of Experts to determine the ACTU complaints later this year.88 Minister Andrews increased the penalties in March 2005, to give retrospective operation so as to fine union action that may later in the year fall foul of the BCII Bill. ACTU: 'The use of retrospective legislation that seeks to impose penalties on those who transgress the legislation prior to it becoming law is not the mark of a fair society, and should be particularly opposed.' Such retrospectivity is very questionable and a dangerous precedent.

In summary, in the BCII Bill:

· There is a complete prohibition on 'pattern bargaining', in an industry where this is prevalent and practical;

· There is a wide definition of 'unlawful industrial action' that is 'industrially motivated' with an adverse impact on employers, but not limited to the employees taking the industrial action; with increased financial penalties;

· Makes practical Project Agreements regulating industrial standards across the building site unenforceable;

· Restricts protected action to a narrow category of 'acceptable conduct' protected action under the WR Act (1996);

· Imposes an impractical, obstructive process of compulsory secret pre-strike ballots, including a requirement a 14 day maximum period of action to be followed by a mandatory 21 day 'cooling off' period;

· Imposes a US style recognition ballot, but without the employer obligation to bargain with the union in good faith;

· Reduces union access to building sites with impossible restrictions on the right of entry and further impeding the ability to lawfully organise;

· Weakens building and construction industry award safety nets;

· Stops certified agreements from encouraging unionism, such as the recognition of building union shop stewards and delegates;

· Establishes a new institutional enforcer, the Australian Building and Construction Commission (ABCC) funded with $96 million, with extensive powers to police the behaviour of workers and union officials, with draconian interrogation powers backed by penalties. This can act irrespective of the views of employers or the merits of the industrial disputes.

· Gives Minister Andrews extensive powers to influence the regulation of the industry, to direct the ABC Commissioner (thus questioning any political independence) and to enforce the Code of Practice (without any agreement by the unions involved);

· ABC Inspectors can enforce a penalty of imprisonment for 6 months against any unionist who does not attend for questioning, answer questions or who obstructs an investigation or fails to hand over documents in a 'building industry investigation.

This specific regulatory regime will see the operations of a secret police style taping of evidence on building sites, a denial of basic civic liberties for union activists, with an enforcing environment to criminalise and prosecute legitimate building union organising. Roberts (2005) cites undermining civil rights as a human right from self-incrimination and the 'right to silence'.

Howe (2005) applies a critical regulatory analysis of the BCII Bill as illustrative of a 'command and control' highly centralised and legally prescriptive model, contrasting with earlier relatively decentralised and participatory models prior to 1996. He makes a number of conclusions that this is a more legalistic and sanctions-based industrial relations strategy to curb the powers of the unions. The ABCC is not to resolve disputes 'but to monitor compliance with mainly prescriptive laws and to impose penalties and sanctions for breaches of those laws' (at 28). 'The use of prescriptive rules to alter behaviour or secure compliance with stated policy objectives is one of the most common features of command and control regulation. This regime has been subject to extensive criticism. For example, a number of submissions to the Senate committee report into the BCII Bill criticised the Bill for being so heavily reliant on prescriptive rules as the basis for the regulatory regime it sought to establish (p. 29).91 The BCII Bill will be a 'disturbing precedent for the future of state regulation of labour regulations in Australia' (at p. 30). The command and control model has inherent weaknesses such as 'unnecessarily complex rules, and overly prescriptive, legalistic and inflexible design and implementation which has undermined compliance.' It would have been unsuccessful. The ABCC is a third party interfering in the construction labour market different from unions and the AIRC. The BCII Bill 'de-values the legitimate function of labour law in providing people dependent upon their labour for a living with some level of protection against being treated as a commodity. It does so by favouring and legitimising an extremely hierarchical regulatory model based on a very narrow policy analysis of what contributes to business productivity and competitiveness. The Bill also serves to reinforce ideological assumptions about what is important in terms of labour regulation, in this case, the extent of alleged corruption in trade union practices. This undermines the labour protection and participation as regulatory goals and de-legitimises the involvement of trade unions (as representative bodies) in labour