ACTU boss has much to learn about ‘right’ to strike

ACTU secretary Sally McManus at the offices of the Victorian brach of the AWU in west Melbourne.

Whatever ACTU secretary Sally McManus learnt at university, it certainly had very little to do with the history of industrial relations regulation in this country.

She might try to claim that the right to strike is an Australian entitlement, indeed a human right. But she clearly has a very poor grip of the actual history of the right to strike in Australia and the context in which this right was introduced. (Note that the right to strike is distinct from the right to withdraw your labour on an individual or collective basis. The right to strike involves an obligation by employers to take back workers on at least the same terms and conditions.)

Let’s be clear: when the system of conciliation and arbitration was introduced in Australia in 1904, there was no legal right to strike. There could not be because the federal government became involved in the regulation of industrial relations through Section 51 (xxxv) of the Constitution.

This section states that the commonwealth may make laws for the purpose of “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state”. In other words, there could be no statutory right to strike because the laws had to be made for the purpose of preventing or settling them.

In point of fact, strikes, at least interstate ones, were technically illegal until 1993. This, of course, didn’t mean that there were no strikes. Australia actually had an appalling record on strike activity which was characterised by large numbers of short disputes that mainly ended without any clear resolution.

It was not until 1993 when the federal Labor government, with Laurie Brereton as minister for industrial relations, introduced the Industrial Relations Reform Act, that there was a statutory right to strike.

Using the external affairs powers in the Constitution and Australia being a signatory to several International Labour Organisation conventions, a limited right to strike in association with enterprise bargaining was enshrined in the federal statute for the first time. An equivalent right to lockout was conferred on employers.

According to McManus, enterprise bargaining “was at first sold as a means of unlocking productivity. Employers would have the capacity to press for changes in award conditions at their workplaces. The trade-off was workers were to have access to protected industrial action to press their claims.”

In reality, the introduction of a limited form of enterprise bargaining — which was actually resisted by employer groups at the time — had nothing to do with productivity. The key was to prevent economically damaging wage-price spirals associated with the centralised form of wage fixation that existed at the time. In combination with comparative wage justice, the inflexible system was prone to spread excessive wage rises quickly and to create macro­economic problems.

If we fast-forward a quarter of a century, the right to strike (and lockout) has remained a feature of all subsequent pieces of legislation (and there have been quite a few).

There are limits placed on this right as well as mechanisms whereby the right to take protected industrial action can be suspended or terminated. Inci­dentally, these legislative pro­visions have parallels in many developed economies.

What seems to have got McManus’s goat is the decision by the Fair Work Commission to suspend the actual (bans on overtime, for instance) and proposed industrial action of the drivers of Sydney Trains. Recall that these drivers, as represented by their trade union, have been seeking an enterprise agreement containing annual wage rises of 6 per cent a year plus a number of other benefits.

This contrasts with the NSW government’s salary cap of 2 per cent a year as well as community wages rising about 2 per cent annually.

In the context of the drivers’ intention to take strike action on the first school day of the year, an application to the FWC was made by the NSW government to have the strike action suspended under section 424 of the Fair Work Act.

This section states that the FWC must suspend or terminate industrial action if there is threat to the “life, personal safety or health or the welfare of the population or part of it” or it would “cause significant damage to the Australian economy or an important part of it”.

In practice, this section has been rarely used. It is also more likely that industrial action would be suspended or terminated for health or safety reasons. After all, inflicting economic damage is the main point of industrial action.

It is understandable that McManus might have been miffed about the decision of the FWC in relation to this case.

But public transport — indeed, essential services more generally — are often treated differently in industrial relations statutes. Moreover, the claim of 6 per cent annual wage rises was clearly excessive by community standards.

That the NSW government is now effectively offering wage rises of 4 per cent a year suggests that the actual and proposed industrial action of the train drivers had the desired impact of forcing a better offer on the part of the government, even if commuters and taxpayers pick up the tab.

So where does this leave McManus?

Her view is that “taking industrial action is now too difficult and seems to becoming even more difficult. Access to protected industrial action for workers has become too technical and too risky.”

Again, the trouble is that the facts are not consistent with these claims. Section 424 is very rarely used and applications by unions for protected industrial action are almost always granted by the FWC. The truth is that there is very little appetite among most workers to undertake unpaid industrial action when the pay-off is too uncertain.

That 70 per cent of workers are in the services sector also means the impact of industrial action on employers is muted relative to the case of shutting down a factory, building site or mine. There can be inconvenience for customers or users, but generally the work is then done the next day and the impact is therefore limited.

The conundrum for McManus is that pushing for legislative change to make industrial action easier for workers won’t really change anything. If we look at the figures on industrial disputes, the numbers are trivial. In the September quarter last year, there were 57 disputes involving 8000 workers (there are more than 12 million employed overall), with coalmining accounting for almost all of these disputes.

Her campaign may play well to the small core of militant hotheads in the union movement, but the reality is that the world has moved on from “them and us” and “we win-you lose”.

Workers are seeking secure, well-paid and meaningful work and less than 10 per cent of private sector workers belong to trade unions in any case. Taking industrial action is simply not part of the deal for the vast majority of workers.