A worker’s right to withdraw their labour is a fundamental freedom, yet Australia’s laws restrict this right. Employers can do as they please and workers can do little to stop them. Workers face heavy penalties for taking strike action. Even a 10 minute stop work meeting can result in tough punishments.
The right to strike is an internationally recognised human right. The United Nations’ International Covenant on Economic (FWO), Social and Cultural Rights of 1966 requires Governments to ensure that workers have a right to strike.
Our Government ratified the Covenant in December 1975, but you wouldn’t know it because our laws are in the interests of big business at the expense of working people.
Under our laws, strikes can only happen during bargaining. At all other times they are unlawful.
Even during bargaining there are too many hurdles. Before workers can take a bargaining strike they must:
- Not be covered by a current enterprise agreement.
- Be in the process of bargaining for an enterprise agreement.
- Not be making claims for others by pattern bargaining.
- Prove that they are genuinely trying to reach agreement.
- Hold a secret ballot.
- Give their employer three clear days notice of the strike.
- And if workers make it that far, employers can retaliate by locking them out without giving notice and for as long as they want.
- If a strike happens outside of bargaining then workers and their unions face dire consequences.
The employer can:
- Get an automatic order from the Fair Work Commission (FWC) requiring a return to work.
- Get injunctions from Federal and State Courts.
- Discipline workers or sack them.
- Sue unions and workers for contempt of court if orders or injunctions are not followed to the letter.
- Sue the workers and their union under various laws for fines up to $10,800 for workers. and $54,000 for unions.
- Seek compensation against workers and their unions for lost revenue.
Even if the employer doesn't want to take legal action, government agencies, such as the Fair Work Ombudsman (FWO) and the Australian Building and Construction Commission (ABCC) can.
Our laws haven’t always been this way. For most of the 20th century there were no fines for workers who took strike action. Instead the laws protected workers from victimisation for taking industrial action. It was illegal to sack someone for going on strike.
The International Labour Organisation (ILO) has found on numerous occasions that our protected action laws breached international obligations to protect the right to strike. The ILO has repeatedly emphasised that the ability to go on strike should not only apply during industrial disputes over collective agreements. The right to strike extends to enabling workers to express their dissatisfaction through industrial action with economic and social policy matters that affect their interests.
In Australia today industrial action is hardly ever taken. There may be a right to strike in limited circumstances during bargaining, but in practice there is no right to strike, except for exceptional circumstances.
The best way to stand up for workers' rights is to join your union and change the rules.