In setting up her stall as a conservative warrior in the lead-up to her successful bid to replace Boris Johnson as UK prime minister, Liz Truss promised to crack down heavily on unions. Truss is seeking a fight with a raft of employee representatives, promising to legislate “minimum service levels” in various industries — essentially meaning that unions are open to challenges on the legality of the strike if a certain amount of the workforce doesn’t keep the industry going (thus pretty solidly undermining the effect of any strike).
Further, she’s intent on upping the level of endorsement any strike action has to have in a union ballot. The Rail, Maritime and Transport Workers Union has called it “the biggest attack on trade union and civil rights” in the country since the 19th century.
You wanna hear something funny? Even if she got all this through, it would still be easier to strike in the UK than it is in Australia. I mean, it’s kind of funny.
The legal right to strike is comically restricted in Australia
Legally protected strike action is only ever available to employees if they are covered by an enterprise bargaining agreement that has expired.
That means if you are part of a workforce covered by an agreement that hasn’t expired, or are covered by an award or individual contracts — and at any given time, the vast majority of Australia’s workforce will be in one of those three categories — you can’t lawfully strike. Doesn’t matter if your workplace has, say, safety concerns, sexual harassment or bullying. And it’s not as though it’s exactly easy to strike, even if you do have an expired agreement.
The hoops to jump through
If a workforce wants to strike they have to apply to the Fair Work Commission for a protected action ballot order, or to conduct a ballot overseen by the electoral commission or an independent ballot agent. The workforce has to demonstrate to the commission that they are genuinely trying to reach an agreement, provide at least three days’ notice — allowing the employer to apply to the commission to have the industrial action overturned — and specify exactly what the industrial action will be.
Public interest
After this, the commission can still rule to suspend industrial action if the action “has threatened, is threatening, or would threaten”:
- to endanger the life, personal safety, health or welfare of the population or part of it
- to cause significant damage to the Australian economy or an important part of it
The minister for employment can make a ministerial declaration terminating protected action for the same reasons. So when Sydney’s train drivers wanted to strike back in 2018, they passed every test only for the commission to rule their 24-hour strike went against the public interest.
Once employees have gotten through all that, the employer is allowed to undertake industrial action in response.
So employers have the same oversight, yeah?
Do they bollocks. The employer response — most commonly by locking the workforce out — doesn’t have to be proportional or reasonable, and the employer doesn’t have to check with anyone, meet any public interest test, or apply anywhere for it to be legal.
So in 2017, when the workforce at dairy giants Parmalat’s Echuca plant workforce threatened a four-hour strike, Parmalat locked them out of the workplace “indefinitely” — eventually, it lasted two months. Something similar happened to workers at Esso’s Longford gas plant. Again: entirely legal.
Even if industrial action is protected, the employer can dock the pay of workers who engage in it. This doesn’t have to be in the case of a full strike; employers can do it even if the strike involves bans on certain kinds of work. Aged care workers negotiating with the Mary Ogilvy facility in Hobart threatened to cease certain duties — such as delivering dirty laundry or emptying the bins in the kitchen — while negotiating their agreement in 2016. They were immediately hit with the threat that their pay would be docked.
Oh, and once an agreement is expired, an employer can apply to unilaterally terminate it, thus bumping employees down to the much lower minimum wages in an award.
So this is the work of those anti-worker conservatives, right?
The system regarding strike action as it stands was designed by the Labor government following the Ruddslide in 2007 — or if you want to be specific, it declined to change crucial elements around strike action from the days of WorkChoices. The Coalition’s inability to touch workplace law since has meant it has remained largely untouched since.
Labor has promised to look at areas of bargaining since getting back into power. They’re looking to change the law that allows employers to terminate agreements so easily. Of course, a key part of the recent job summit was the push to reintroduce multi-business or even sector-wide bargaining, which led to a lot of raging from business about the inevitable spike in strike action that would apparently follow. We’ll see.
One rule for the rich… Thank you, Lewis. That’s put this country’s labour laws in perspective.
A good exemplar would have been Pinochet’s Chile with many of the same radical right libertarian socioeconomic policies of the Austrian/Chicago School (inc. Koch’s muse James Buchanan); so unpalatable an authoritarian regime is required to execute (pardon the pun) and control policies.
This govt wont change anything. Like Morrisons mob before them, Albos mob is captured by the billonaires and big biz, including the fossils.
This is a very accurate and concise article on why the Rudd-Gillard Labor governments failed Australian workers. In saying that though it is amazing that real wages did rise 8% over the 6 years of their terms. There were many public sector EAs clinched in that period and this was probably a bit of payback for their role in winning in 2007 and 2010 but since then it has been all downhill.
“Dora the Ignorer”