It’s well established that in Australia, the right to strike is restricted beyond all reason. One illustrative example: Liz Truss prefaced her split-second premiership of the United Kingdom by promising to go all Thatcher on the unions. We noted at the time that even if all of her proposed reforms — called “the biggest attack on trade union and civil rights” in the country since the 19th century — had been implemented, it would still have been easier to strike over there than it is here.
To briefly and very roughly sketch it out: a workforce can only legally go on strike in Australia if it is in the process of negotiating an agreement. Outside of that window (a window that comes around every three or four years), or because of safety concerns, or sexual harassment, or in solidarity with an unfairly sacked colleague, you can go eat a pine cone. If you’re part of a workforce that doesn’t have an agreement (which is the majority of employees), you have no legal right to strike. Ever.
Beyond that, there are a myriad of steps a workforce has to follow, in terms of votes and applications, before it can strike. Meanwhile if it even threatens one, the employer can unilaterally lock the whole workforce out of the business. After all this, the workplace umpire, the Fair Work Commission, can still rule to suspend industrial action if it “threatens to cause significant damage to the Australian economy or an important part of it”.
How did it get this way? And what might Australia look like with a stronger right to strike?
Labor in under a misapprehension
The current state of affairs can be levelled at one culprit: the Australian Labor Party (Australia’s “party of labour”, if you will). In 2007 the party returned to government, helped in no small measure by John Howard’s comically punitive WorkChoices legislation, and got to work on the Fair Work Act, evening out the playing field between worker and boss. Except in all the ways it didn’t. John Howard ran a scare campaign about union power under Labor. He needn’t have bothered — aside from allowing more matters to be negotiated as part of a workplace agreement, Labor barely felt the need to update the rules around industrial action that Howard had had in place.
But perhaps it’s unfair to blame the Labor Party for this issue — it was simply maintaining an enduring law put in place by those shills for big business in (oh come on… ) the Labor Party.
Crikey asked Andrew Stewart, author of Stewart’s Guide to Employment Law and the John Bray Professor of Law at the University of Adelaide, if 2007 represented a “sliding doors” moment for Australian workers, and he nominated an earlier date: 1993. In a cruel irony, it was the introduction of the “right to strike” in the first place that kicked off the atmosphere we have now.
“If we ignore some fairly limited state level provisions, it was the first time in Australia’s history where the idea of having a right to take industrial action was introduced,” he said.
Up to this point, Stewart said “industrial action was as common in Australia as anywhere in the world”. And while he’s keen to point out that there are many reasons industrial relations are in the state they currently are — dipping union membership, changing workforce demographics, etc — strike action dipped rapidly after this reform.
Prior to 1993, it was technically always unlawful to take industrial action, so unions figured “you might as well take it whenever you felt strongly about an issue in the workplace”, leading to what Stewart called relatively “frequent but short” strike actions. “And the fact was, right through the first nine decades of the 20th century, it was very unusual for employers to go after unions for workers in court,” he said.
After the new laws, most (but not all) unions adopted the position that their members would only strike when it was legal. On top of this, said Stewart, “employers also got more willing to pursue sanctions when there was unlawful action taken”.
None of this was intended. “No one in the Labor government in 1993, or the Australian Council of Trade Unions, were thinking ‘oh, this is going to restrict industrial action’,” Stewart said.
What might have been?
There’s a lot that might have happened had workforces retained the power (and willingness, which is a big caveat) to strike almost at will. There’s the obvious stuff: Australian workers might have been better equipped to resist years of wage stagnation or the incredible transfer of wealth from workers to shareholders in recent decades, not to mention the entitlement-shredding party that is the “gig economy“.
But the implications are potentially even wider than that. Consider the legacy of the NSW Builders Labourers’ Federation (BLF) under the leadership of the late Jack Mundey. The BLF didn’t just withdraw labour as a tactic to improve wages and conditions for its members; it imposed “green” bans to save parks and heritage spaces, and organised strikes in response to discrimination against gay students and Indigenous tenants in Redfern.
Imagine how much more might have been done concerning, say, climate change in Australia if whole workforces were willing and able to similarly throw their entire weight behind the movement.
Then there’s the matter of freedom of speech — as industrial relations lawyer Josh Bornstein argues at length in his new book Working for the Brand, workers are increasingly subject to workplace arrangements wherein “they not only sell their labour to the company, but they trade away critical parts of their citizenship” thanks to contracts that restrict what they may say or do in their free time. He points to campaigns by the National Tertiary Education Union around academic freedom as some of “the most successful examples of resistance to corporate brand management”. Not coincidentally, education currently has the highest rate of trade union membership in Australia.
