RTBU NSW Secretary Alex Claassens (left) and Secretary of Unions NSW Mark Morey

Days after the Nice Work Commission — sorry, Fair Work Commission; Nice Work Commission is what lawyers call it — ruled against the NSW rail unions, declaring their proposed January 26 weekend strike illegal, and we all appear to have moved on.

Bloody marvellous, innit? The right to strike suffers a shattering blow in a country founded on labour movement power, the numbers of strikes have fallen to microscopic proportions, and wage power has fallen with it, and a week later we’re all talking about parliamentary gamesmanship.

The FWC’s ruling, under Mr Justice Hamburger — no one who likes law-based industrial relations should watch it being made, like ah … oh what foodstuff would serve as an analogy? — has been touted as the “end of strike action in Australia”.

It isn’t really, and one of the problems in this discussion is that the FWC railways ruling is serving as an alibi for all the other reasons why the labour movement has become so docile of late. Strikers throughout history have braved starvation, thugs, dogs and guns to strike, so of itself — it can’t be that.

That said, it’s a pretty bloody awful precedent. How did it come about? The relevant section of the Fair Work Act is section 424, which reads:

(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise … if the FWC is satisfied that the protected industrial action … would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

The intent of this section is obvious. It’s to eliminate the sort of ’70s-era strikes — by power unions, etc — that really did bring the economy to a stop, and also killed Labor governments (such as the 1990 tram strike in Victoria). The Gillard government knew the right could stack the commission when in power. They presumed the wording was tight enough to limit their scope.*

They presumed wrong. As a mildly tediously acerbic piece in Justinian notes — how’s that for a six-word tautology — the International Labor Organisation gave the Fair Work Act the thumbs-down on its inception, noting that it did not protect the right to strike for Australian workers.

Now that has come to the fore. The FWC (it is yet to publish full reasons) has determined that a three-day strike by one transport modality in one Australian city, constitutes a threat to the Australian economy — even though rail company executives told the relevant hearing that they had alternative arrangements in place, which covered key services.

The ruling doesn’t kill the right to strike — unless all lost time is taken as “significant” damage to the economy or welfare, which would be an absurdity. But it’s a huge blow to transport, power, health and maritime unions. The Sydney Trains lawyers even tried the “welfare” argument: the 5% of students who have anxiety disorders would be made worse by late trains. Even Justice Hamburger didn’t take that side.

The Fair Work Act was designed by Labor, the Australian Council of Trade Unions and the peak right-wing unions. Its object, as has been the case for a century of Australian industrial relations law, was to control smaller and more militant unions, using the power of the state as a proxy. That worked when the union movement had virtual dual power in Australia.

Labor and the unions are now paying for their attempt to create a post-political IR system. Or are they? The unions are now fund managers on a vast scale; the health of their investments is dependent on the smooth-running of a high-growth economy. Labor benefits from anger at the FWC and the NSW Coalition government, without being terribly upset about the removal of the sort of public sector strike action that would upset their technocratic managerialist agenda — and, as individuals, their transfer to the super funds management sector after their parliamentary tour of duty. Militant unions are hamstrung by the huge fines built into the “Fair Work” system.

The only possible strategic responses to this by workers, and those organising them is wildcat strikes, overseen by no official body, in sectors of precarious work. And industrial guerrilla activity of the glorious old days of the Builders Labourers Federation “early concrete pour” — where a whole floor of a building would be set too soon, and have to be chipped out. Great stuff. This would not only represent workers, but also make the FWC unworkable as an instrument, and prompt its reconstruction. Nice work if you can get it, and you can get it if you try …

*  An expert on Marxist legal theory and the work of Evgeny Pashukanis could have put them right. Australia’s leading authority on that is one A. Bandt, of Murdoch University. If only the Gillard government could have got in touch with him in time!

Peter Fray

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