Australian Council of Trade Unions secretary Sally McManus

The most immediate impact of the decision last Thursday by the Fair Work Commission to suspend all industrial action relating to negotiations between the New South Wales government and Rail, Bus and Tram Union for six weeks, was that a 24-hour strike meant for today cannot go ahead. More broadly, according the Australian Council of Trade Unions, it has the effect of demonstrating that the right to strike in Australia is “nearly dead”. How true is that?

We look at the impediments to strike action in Australia.

Oversight

Protected strike action is only ever available to employees after an agreement has expired. It doesn’t matter if your workplace is rife with sexual harassment or bullying or ongoing concerns about the physical safety of employees. If your workforce is covered by an agreement that hasn’t expired, or by an award — and most of the Australian workforce at any given time is in one of those two categories — there is no ability to lawfully strike. 

Once the agreement has expired, there are still many hoops to jump through. 

A workforce (usually through their union) have to apply to the commission for a protected action ballot order, conduct a ballot overseen by the electoral commission or an independent ballot agent. That ballot will only be granted by the commission if the union demonstrates it and its members are genuinely trying to reach an agreement. It has to give the employer at least three days notice (during which time the employer can apply to the commission to have the industrial action overturned) and specify exactly what form the industrial action will take.

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.

It was this criterion that scuppered the RBTU’s industrial action. As Paul Karp points out in The Guardian, what is deemed to be a threat to the public interest when it comes industrial action, is pretty broad. Academics at Monash University had their action — a ban on submitting students results — suspended by Fair Work because the stress and anxiety it would cause students was deemed a threat to their wellbeing. The public interest test has also resulted in industrial action by Border Force and Esso gas workers being suspended.

Employers

Once employees have completed those steps, and the majority of employees have voted for industrial action, they can take industrial action or threaten to do so. Either way the employer is allowed to undertake industrial action in response. Most commonly, this involves locking employees out of the workplace.

This happened early last year, when Dairy giants Parmalat locked out their Echuca plant workforce “indefinitely” — eventually, it lasted two months — in response to a threat of a four-hour strike. This is entirely legal, and in contrast to employee industrial action, which requires several layers of oversight, is more or less entirely unregulated; an employer doesn’t have to apply anywhere, there is no “public interest test”, it doesn’t have to be reasonable or proportionate to what has been threatened. The same happened to workers at Esso’s Longford gas plant.

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.

No sympathy

Section 44d and 44e of the Trade Practices Act prohibits secondary boycotts — so a workforce not covered by the same agreement, which engages in solidarity strikes, could be exposed to fine.

The same is true of protest strikes in response to laws or even management decisions outside an agreement that impact working conditions. So, when journos walked off the job at Fairfax in response to the cutting of 115 jobs across their publications, it was unlawful and exposed the union and employees to fines — something Fairfax was happy to remind them of.

The same is true of the childcare workers who walked off the job on International Women’s Day last year to protest the disparity between minimum wages in their industry and other, male dominated jobs.

Peter Fray

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