Research Paper no. 33 2007–08
Striking a balance: the need for further reform of the
law relating to industrial action
Jane Romeyn
Research Branch[1]
25 June 2008
Executive summary
- A right to strike has been widely recognised as a fundamental
element of stable collective bargaining. Industrial action is one
of the essential means available to employees to promote and
protect their economic and social interests and resolve industrial
disputes. Employers may also use industrial action (for example
through lockouts).
- Legislative frameworks have long been recognised
internationally as having an important role to play in equalising
power bases and promoting stable bargaining by establishing the
rules for the game . A defined right to strike forms an important
part of those rules.
- In defining the rules of the game, the International Labour
Organisation (ILO) attempts to ensure that the right of parties to
take industrial action is balanced against other fundamental rights
of workers, employers and the public such as the freedom of
non-strikers to work and the right to protection of property and
personal safety. This is sometimes misunderstood by governments
which, in attempting to protect the public interest , impose
constraints that effectively limit any successful industrial action
and thereby, impair the important role of industrial action in
collective bargaining.
- Since the introduction in Australia of the concept of protected
industrial action by the Keating Government in 1993, successive
waves of reform by the Howard Government in 1996 and 2005 severely
constrained the right to take industrial action. They did this by
limiting the scope for protected action, imposing difficult
procedural requirements on its access and ensuring that all
unprotected action is regarded as unlawful and subject to an array
of remedies.
- The ILO and a number of Australian academic and other
commentators have criticised the Work Choices reforms for tipping
the balance of power too far towards employer interests undermining
the important role of the right to strike as a fundamental element
of stable collective bargaining.
- Despite suggestions that further reform of the right to strike
will be limited, this paper argues that a thorough review of
relevant legislative provisions is required. It suggests that if
such a review is undertaken it must give prime consideration to:
the requirements of stable and voluntary collective bargaining; the
need to strike a fair balance between the interests of workers,
employers and the public; and the need to avoid unnecessary
regulatory burden and complexity with its associated costs for
organisations and the community. Consideration should also be given
to Australia s obligations under international conventions and the
guidance provided by the principles and decisions of the ILO s
supervisory bodies.
- The paper notes concerns that any reduction of constraints on
industrial action will see an explosion of such action, but
suggests that these concerns require critical consideration in
light of the range of economic, social, cultural and structural
changes which have seen industrial action fall to historically low
levels.
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Contents
Introduction
The benefits of bargaining
The role of industrial action in
collective bargaining systems
Internationally recognised constraints on
industrial action
Legislative developments and the right to
strike in Australia
The Industrial Relations Reform Act
1993
The Workplace Relations Act 1996
The
2005 Work Choices amendments
Background to the
legislative changes
ILO criticisms
Other potential areas for change
The secret ballot provisions
Recent
developments
Conclusions
Appendix A: Glossary of terms
Appendix B: Trends in industrial
disputation
Appendix C: A note on secret ballots in
the United Kingdom
There have been fundamental changes in the
institutions and processes of Australian industrial relations over
the last two decades. In particular, there has been a significant
shift from a system dominated by conciliation and arbitration, in
which bargaining played a subordinate role, towards a more
decentralised system, in which bargaining predominates. These
changes have been accompanied by considerable political, academic
and social debate. Much of this debate has focused on whether the
current framework is fair in the protections it offers employees,
or whether it is unfairly weighted in favour of employers. Within
this debate, considerable attention has focused on the role of
awards and individual bargaining. A continued role for collective
bargaining, at least at the level of the workplace and enterprise,
has not been seriously questioned being supported by all major
political parties, employer associations and employee
organisations. However, limited attention has been paid to the
necessary requirements of stable collective bargaining systems.
A right to strike (or to take industrial action) has been widely
recognised as a fundamental element of voluntary collective
bargaining. Industrial action is one of the essential means
available to employees to promote and protect their economic and
social interests. An ability to take industrial action is
consistent with the parties taking responsibility for their
industrial outcomes and an important means of overcoming a
bargaining impasse. It may also be considered a necessary corollary
of a healthy collective bargaining system and indeed, a healthy
democracy.
Yet few, if any, industrial relations systems establish an
absolute right to strike and relevant
international covenants and conventions recognise the need for
limitations on industrial action.
Since the introduction of the concept of protected industrial
action by the Keating Labor Government in 1993, successive waves of
reform by the Howard Government in 1996 and 2005 have severely
constrained the right to take industrial action This occurred by
limiting the scope for protected action, imposing difficult
procedural requirements on its access and ensuring that all
unprotected action is regarded as unlawful and subject to an array
of remedies. While the Rudd Government has proposed further reform
of the industrial relations legislative framework to encourage
collective bargaining, ALP policy suggests that clear, tough rules
will apply to protected industrial action and certain other
features of current arrangements will be retained.[2] In that context, this paper
examines:
- the benefits of collective bargaining
- the role of a right to strike in voluntary collective
bargaining systems
- recognition of the importance of a right to strike by relevant
international organisations and of the need for limitations on that
right
- the development of a right to take protected industrial action
in Australia
- the nature of constraints which were imposed on the right to
take industrial action in 1996 and 2005
- the need for further reform of the law relating to industrial
action with particular reference to concerns expressed by the ILO
and the mandatory secret ballot requirements.
The paper focuses on the background to, and
provisions of the Workplace Relations Act 1996 relating to
industrial action. It does not deal with the special arrangements
applying to the building and construction industry which were
established under the Building and Construction Industry
Improvement Act 2005.
To assist the reader, a glossary of terms is
provided at Appendix A.
To understand approaches to handling industrial disputes within
a collective bargaining framework, it is useful to distinguish
between disputes of interest and disputes over rights . Interest
disputes concern the making of a new agreement, or changes to an
existing agreement in relation to a matter not covered by the
agreement. They may be distinguished from rights disputes which
arise out of the interpretation of the provisions of an existing
agreement that establishes employee rights for the term of the
agreement.
A right to strike generally arises in relation to the resolution
of interest disputes. Many bargaining systems recognise that
grievance or dispute resolution procedures (for example, involving
a stepped process of discussion, conciliation or mediation, perhaps
ending with arbitration) are appropriate to the resolution of
rights disputes arising during the term of an agreement. The
inclusion of such provisions within agreements can help to ensure
that grievances are amicably resolved as quickly as possible and at
the lowest possible level, without the need to resort to industrial
action. This approach is consistent with the philosophy that
employers, employees and their representatives should take
responsibility for determining mutually beneficial terms and
conditions of employment to apply in their workplaces and should
adhere to those settlements during the life of their
agreement.[3]
During the 1970s, much of the academic debate about industrial
relations in Australia focused on the relative merits of
arbitration and collective bargaining as alternative means of
resolving interest disputes over the terms and conditions of
employment. John Niland overviewed the case for collective
bargaining and argued that features of the dynamics of bargaining
gave it many advantages over arbitration. He explained that:
Under bargaining the claims are carefully
adjusted so that the respective positions of the parties
progressively become more realistic. This means that the gap
between the final settlement point and the last known position of
the union will be smaller.
[bargaining] tends to encourage a trade-off
mentality not evident under arbitration. As each party is called on
to make unplanned concessions, it is forced to develop specific
priorities Bargaining not only enables each party to better
understand the other side s true position, it encourages each side
to a better understanding of its own position.[4]
For these reasons, Niland argued that bargaining was more likely
than arbitration to facilitate genuine attitudinal change, bring
about a resolution of a dispute and encourage commitment to the
settlement. Other commentators have made similar points, noting
that dispute settlements which are imposed on the employers and
employees by external third parties are more likely to leave bad
feelings and unresolved issues, which can undermine relationships
and commitment to outcomes.[5]
Bargaining has also been recognised as being capable of
redressing the fact that in some workplaces inefficient work
practices (sometimes called restrictive work practices) may develop
which management is unable to change without the consent and
cooperation of employees. Workplace bargaining has been recognised
as being an appropriate process to influence such changes, although
productivity arbitration has also played a role in this regard in
some industries.[6]
As Mark Woden has noted:
enterprise-based bargaining provides an
opportunity for employers to trade-off wage increases for changes
in work practices, thereby potentially leaving both individual
workers and firms better off.[7]
Bargaining at the level of the workplace has advantages over
unilateral management action or arbitration in assisting workplace
reform and productivity growth. Bargaining provides an effective
mechanism for tapping the potential and knowledge of employees, who
often have valuable ideas about how to improve workplace
performance. It provides a means of ensuring that those at the
workplace take responsibility for developing their own solutions to
emerging problems and issues, without relying on parties external
to the workplace. And, it thereby encourages greater involvement
in, and commitment to the implementation of change as a number of
commentators have observed, for example:
enterprise bargaining may have a sustained
impact on productivity by affecting the long-run rate of
productivity growth. This might arise if enterprise bargaining is
able to promote more cooperative relations in the workplace,
thereby potentially encouraging and facilitating innovation, and
thus enabling a shift outwards in the production function.[8]
and
Collective bargained solutions often involve
change. Change works best when both sides agree to the future
direction. That is the reason why collective bargaining is so
appropriate to organisations undergoing change. An imposed change
can be resisted and undermined in subtle but corrosive ways by
those who feel that change was imposed without their
consent.[9]
It should be noted, however, that the hypothesis that workplace
and enterprise bargaining is beneficial to productivity improvement
has not been proven conclusively. Examining the evidence in 2000,
Wooden found that:
On balance, while the case is certainly not
proven, there does appear to be enough evidence to suggest that
enterprise bargaining is associated with improved performance at a
sufficient number of workplaces to have made a noticeable
difference to aggregate productivity.[10]
More recent examinations of the literature undertaken by the
state and territory governments led them to argue in 2005 that the
recent history of Australia establishes a clear link between
collective bargaining and productivity gains. [11] However, in their submission the
state and territory governments conceded that:
Across a broad range of countries, the OECD has
consistently found that there is only a small and tenuous link
between national economic performance and types of industrial
relations systems.[12]
In particular, the state and territory governments noted that
highly regulated labour markets and countries with more corporatist
bargaining models have recorded similar productivity levels to
countries with much less regulation, suggesting that a range of
factors drive productivity. However, as noted by the state and
territory governments with reference to the New Zealand experience
under the Employment Contracts Act 1991, it is difficult to achieve
co-operative, productive working relationships based on a take it
or leave it approach, as distinct from an approach based on mutual
agreement.[13]
It is widely recognised that the owners of the means of
production have power superiority over those who sell their labour
for wages.[14] In
the absence of agreement or legislated minium standards, employers
have the capacity to restrict the price they will pay for labour,
downsize their operations, move their enterprises elsewhere
(including to other countries) or close their operations.
Individual employees by comparison are in a relatively weak
bargaining position. They may seek to negotiate individually or may
refuse to work on the terms offered voting with their feet .
Employees may also express their collective voice to bring their
grievances and demands to the attention of management through their
representatives. And it has been found that the collective voice
mechanism reduces individual exit behaviour (such as labour
turnover).[15]
Strikes and other forms of industrial action represent the
further expression of collective voice by employees and may help to
balance their bargaining power vis a vis the employer.
Indeed, strike action has been recognised as playing such an
indispensable role in resolving deadlocks in collective bargaining
relationships as to be regarded as an essential
ingredient of free collective bargaining, as Paul Weiler
explains:
the stoppage of work affects both sides,
inflicting harm and putting pressure not only on the employer, but
also on the union as a lever towards settlement. Even more
important, it is the prospect of impending strike action
(especially if the parties have previously had real life experience
of it) which is a powerful prod to agreement as negotiations reach
the critical point The ability to compromise simply would not be
there unless the parties were both striving mightily to avoid the
harmful consequences of a failure to settle. In the larger system
it is the credible threat of the strike to both sides, even more
than its actual occurrence, which plays the major role in our
system of collective bargaining.[16]
For these reasons, Weiler suggests that banning strikes would
effectively end collective bargaining.[17]
Industrial action may occur defensively, as a
form of protest against, or frustration with decisions made by
management (or some other authority, such as government). Or it may
occur offensively (or proactively), as an attempt
to exert pressure on the employer to improve wages or working
conditions or other aspects of the employment relationship.[18] Similarly, employers
may take industrial action defensively or offensively as discussed
further below.
Less organised manifestations of workplace discontent include
absenteeism, labour turnover and industrial sabotage. These forms
of conflict may increase in incidence in situations where
constraints are imposed on the right to take industrial action, if
workplace grievances are not redressed.[19]
Because of the role of industrial action in collective
bargaining systems, collective bargaining is sometimes perceived as
a law of the jungle or a might is right approach; where the weak
suffer at the hands of the strong and power struggles prevail.
However, a poorly understood characteristic of collective
bargaining is that stable collective bargaining relationships are
dependent on reasonably even power bases existing between the
parties.[20]
Legislative frameworks have long been recognised internationally
as having an important role to play in equalising power bases and
promoting stable bargaining, for example, by:
- imposing obligations on employers to recognise trade
unions
- imposing obligations on employers and employee representatives
to bargain in good faith
- specifying fair and unfair bargaining practices
- setting a floor to bargaining (for example by legislating
minimum terms and conditions of employment which cannot be undercut
by bargaining)
- providing for legally protected industrial action as a means to
balance the economic power of the bargaining parties
- defining acceptable limits to industrial action
- defining the circumstances in which third party neutrals should
intervene in disputes
- establishing procedures for the suspension of bargaining in a
crisis.
Otto Kahn-Freund described this role of labour law as
establishing the rules of the game necessary to protect the parties
from each other and to protect the public interest.[21]
If the legislative framework is to provide a stable, lasting
foundation for encouraging mutually beneficial relations, it must
strike a fair balance between workers and employers interests,
between social and economic considerations, between rights and
responsibilities, between individual and democratic rights and
between the public interest and the requirements of voluntary
collective bargaining.[22] Undue politicisation of the legislative framework which
allows the power balance to tip strongly towards either workers or
employers can impede the fundamental compromises and
self-determination which are the essential foundations of effective
bargaining. If this happens, relationships between employers,
employees and their representatives may also be politicised leading
to mistrust and discontent. Furthermore, tipping the balance
strongly one way and then another as the political pendulum swings,
can lead to instability and undermine the development of mature,
cooperative relationships.[23]
The peaceful resolution of industrial disputes
through rational discussion and exchange of views should, of
course, be regarded as the preferred means of
settling work related differences. Within a context in which the
rules of the game are specified within a fair and balanced
legislative framework, however, industrial action can play an
important role in resolving conflicts of interest. In particular,
it can force a party that is refusing to negotiate to come to the
negotiating table, and it can help to bring about the attitudinal
change necessary to narrowing the gap between the positions of the
parties especially where a difficult bargaining impasse
develops.
It may be argued that strikes damage economic performance,
reduce living standards and destroy jobs. According to this
argument, given the damaging nature of strikes, society has a right
to expect strict regulatory arrangements will be imposed to ensure
that strikes are used sparingly and responsibly and are effectively
a last resort.[24]
It should be noted, however, that, in addition to the role of
industrial action in collective bargaining outlined above, Tonia
Novitz has reviewed empirical studies and found that there is no
evidence that suppressing industrial action leads to better macro
or micro-economic outcomes in the longer term.[25] As Novitz explains:
If collective bargaining is not accompanied by
a legally recognized right to strike the outcome may be lower wages
or cheaper labour; but this does not necessarily result in higher
productivity or competitiveness. Instead, low wages may merely
allow an inefficient business to hide its managerial,
organizational, and other inadequacies, while increasing the
dependency of waged workers on social security.[26]
Strikes are not the preferred means of resolving
disputes as they involve costs for all parties those taking
industrial action will suffer a loss of income if they stop work,
employers suffer disruption to their operations and the public may
also be affected. However, taking a broader perspective, the right
to take industrial action is a fundamental pre-condition for
stable, voluntary collective bargaining which is itself a process
of recognised social and economic benefit.
The right to take industrial action is frequently referred to in
shorthand as the right to strike . However, industrial action may
take a number of forms, including strikes, bans and limitations on
work (such as go-slows and work-to-rules ), secondary boycotts,
picketing and sit-ins. It may also include lockouts by employers. A
right to strike which covers the range of forms of industrial
action has been recognised by international organisations of which
Australia is a member and is expressed or implied in conventions
which Australia has ratified.[27]
In recognition of the important role of industrial action, a
right to strike in support of economic and social interests is
expressly protected by the United Nations International Covenant on
Economic, Social and Cultural Rights, which provides:
Article 8
1. The States Parties to the present Covenant
undertake to ensure:
(a) The right of everyone to form trade unions
and join the trade union of his choice, subject only to the rules
of the organization concerned, for the promotion and protection of
his economic and social interests. No restrictions may be placed on
the exercise of this right other than those prescribed by law and
which are necessary in a democratic society in the interests of
national security or public order or for the protection of the
rights and freedoms of others;
(b) The right of trade unions to establish
national federations or confederations and the right of the latter
to form or join international trade-union organizations;
(c) The right of trade unions to function
freely subject to no limitations other than those prescribed by law
and which are necessary in a democratic society in the interests of
national security or public order or for the protection of the
rights and freedoms of others;
(d) The right to strike, provided that
it is exercised in conformity with the laws of the particular
country. (Emphasis added.)
2. This article shall not prevent the
imposition of lawful restrictions on the exercise of these rights
by members of the armed forces or of the police or of the
administration of the State.
3. Nothing in this article shall authorize
States Parties to the International Labour Organisation Convention
of 1948 concerning Freedom of Association and Protection of the
Right to Organize to take legislative measures which would
prejudice, or apply the law in such a manner as would prejudice,
the guarantees provided for in that Convention.
The International Labour Organisation s (ILO s) Freedom of
Association and Protection of the Right to Organise Convention 1948
(No. 87) and the Right to Organise and Collective Bargaining
Convention 1949 (No. 98) do not make explicit reference to the
right to strike. For this reason, in Victoria v
Commonwealth, the Australian High Court found the external
affairs power of the Australian Constitution and the International
Covenant on Economic, Social and Cultural Rights to be an
appropriate source of legislative authority to enact provisions
supporting lawful industrial action during bargaining periods,
because it specifically refers to a right of strike.[28]
Nevertheless, the right to strike has been taken to be an
integral part of the Principles of Freedom of Association developed
by the ILO Governing Body s Committee on Freedom of Association. It
is considered to be an intrinsic corollary of the right to organise
which is protected by Convention No. 87, deriving from the right of
workers organisations to formulate their programs of activities to
further and defend the economic and social interests of their
members.[29] The
ILO s Committee of Experts has said that:
the right to strike is one of the essential
means available to workers and their organisations for the
promotion and protection of their economic and social interests.
These interests not only have to do with obtaining better working
conditions and pursuing collective demands of an occupational
nature, but also with seeking solutions to economic and social
policy questions and to labour problems of any kind which are of
direct concern to the workers.[30]
The ILO s supervisory bodies have consistently interpreted the
right to strike as extending to all forms of
industrial action.[31]
However, the right to strike is not absolute
and it may be subject to certain legal conditions, restrictions and
prohibitions.[32]
The ILO has recognised a number of limitations on the right to
strike, principally:
- Strikes that are purely political in character do not fall
within the scope of the principles of freedom of association.
However, the ILO considers that protest strikes aimed at
criticising or influencing a government s economic and social
policies should be allowed.[33]
- Restrictions on industrial action can be justified if the
action ceases to be peaceful.[34]
- A temporary restriction on strikes is acceptable where it
prohibits strike action in breach of collective agreements (such as
a no further claims provision in an agreement or an agreed
provision for resolving rights disputes).[35]
- Limitations such as notice of the intention to strike, an
obligation to engage in conciliation, provision for voluntary
arbitration, cooling-off periods and ballot requirements are
permitted provided they are not so cumbersome as to render lawful
strike action to be very difficult or impossible in
practice.[36]
- Penal sanctions against strikes should only be imposed where
there are violations of strike prohibitions which are in conformity
with the principles of freedom of association. In addition,
sanctions should be proportionate to the offences committed and
penalties of imprisonment should not be imposed in the case of
peaceful strikes.[37]
- A general prohibition on the right to strike can be justified
only in circumstances of acute national crisis and for a limited
duration.
- A general prohibition on sympathy action does not conform to
the relevant convention workers should be permitted to take
sympathy action provided the initial strike they are supporting is
itself lawful.[38]
- Restrictions on picketing are acceptable if they are confined
to cases in which picketing ceases to be peaceful or interferes
with the freedom to work of non-strikers.[39]
- A permanent ban on strikes should only be imposed on public
servants acting in their capacity as public authority officials and
workers in essential services and should be compensated by the
existence of adequate impartial and speedy conciliation and
arbitration procedures.[40]
- Hiring of workers to replace strikers seriously impairs the
right to strike, but is acceptable in essential service strikes or
situations of acute national crisis.[41]
- A minimum safety service may be imposed in all cases of strike
action when such minimum services are intended to ensure the safety
of persons, the prevention of accidents and the safety of machinery
and equipment.[42]
- Wage deductions for days of strike do not offend the principle
of freedom of association, however, in general, the parties should
be free to determine the scope of negotiable issues and payment of
wages for the period of a strike should neither be required nor
prohibited.[43]
- Restrictions relating to the objectives of a strike and the
methods used are allowable if they are sufficiently reasonable so
as not to result in practice in a total prohibition or an excessive
limitation on the exercise of the right to strike.[44]
- The protection of freedom of association does not cover abuses
in the exercise of the right to strike, such as failure to comply
with reasonable requirements regarding lawfulness or acts of a
criminal nature. Sanctions imposed in the event of abuse must not
be disproportionate to the seriousness of the violations.[45]
Constraints recognised by the ILO attempt to
ensure that the right of the parties to take industrial action is
balanced against other fundamental rights of workers, employers and
the public such as the freedom to work of non-strikers and the
right to protection of property and personal safety.[46] This is sometimes
misunderstood by governments which, in attempting to protect the
public interest , impose constraints that effectively limit
any successful industrial action. As Shae
McCrystal notes, the role of the law with respect to protected
action should allow for adequate accommodation of the fact that
negative effects from industrial action are a necessary consequence
of voluntary collective bargaining. [47]
It should be acknowledged that the ILO has faced
pressures to reassess its role and reform its standard setting and
supervisory mechanisms with a view to modernising its standards and
streamlining its arrangements. In response to those pressures, the
ILO commenced a process to review its conventions and
recommendations and declared some to be outdated and no longer
binding. It also refocused its attention on a set of fundamental
principles and core labour standards. However, Novitz points out
that the review of ILO conventions has not led to any diminution in
the status of ILO Conventions Nos. 87 and 98, but rather, has
resulted in their elevation as core labour standards. She also
notes that revision of reporting procedures has not significantly
changed the role of the Committee of Experts, and there is no
indication of any radical change that would impact on the
jurisprudence concerning the right to strike.[48] Both Convention No. 87 and
Convention No. 98 have been ratified by Australia and create
binding international legal commitments.
Until the 1990s, collective bargaining in Australia operated in
a virtual legislative vacuum.[49] Legislatures relied on the conciliation and
arbitration power of the Australian Constitution (section 51(xxxv))
to provide the basis for the industrial relations framework. They
refrained from enacting legislation to regulate collective
bargaining, which instead took place within the dominant
conciliation and arbitration system. This system was based on the
presumption that justice and reason should replace the law of the
jungle. There was no legislative protection of the right to
strike.[50] Trade
unions and their members were not only liable to actions for
damages in tort and contract, but
both State and federal parliaments [had]
adopted a quite extraordinary range of legislative proscriptions
against industrial action, the operation of which [was] additional
to the common law. The end result [was] that for all practical
purposes it was impossible, at least before 1993, for any group of
Australian workers lawfully to take industrial action to protect or
promote their occupational interests.[51]
While legal sanctions against unions and employees were rarely
used, their possible application placed workers and their
representatives in a precarious position. This system did not
attract ILO criticism, in part because legal sanctions were so
rarely used, but also because impartial and speedy conciliation and
arbitration processes compensated for the absence of protection for
the right to strike. In addition, it was not until 1973 that
Australia ratified ILO Convention No. 148, the Freedom of
Association and Protection of the Right to Organise Convention and
ILO Convention No. 158, the Right to Organise and Collective
Bargaining Convention.
By the late 1980s, strong pressures emerged for greater autonomy
at the workplace level and the use of enterprise and workplace
bargaining to assist the process of modernising Australian
workplaces. These pressures necessitated a rethinking of the role
of state intervention in industrial relations (through the
mechanism of conciliation and arbitration tribunals) as a means of
settling the terms and conditions of employment. It also required a
rethinking of the role of collective bargaining and industrial
action within the Australian industrial relations system.
In response to these pressures, the Australian Industrial
Relations Commission (AIRC) began a process of managed decentralism
which involved award restructuring and the removal of restrictive
work and management practices under a two-tiered wage system.
However, frustrated by the speed of the AIRC s processes and the
constraints imposed on workplace bargaining, in 1992 the Keating
Government passed legislation to promote the use of certified
agreements and encourage greater flexibility and self-determination
at the workplace level.
The 1980s also witnessed some well publicised actions in
industrial tort, such as the Dollar Sweets case, the Air Pilots
case and the Odco case,[52] as well as actions under the secondary boycott
provisions of the Trade Practices Act 1974.[53]
In 1989, the ILO s Committee of Experts raised concerns with the
Australian Government about the lack of protection for industrial
action from common law liability. In 1991, after considering the
Government s response, the Committee of Experts expressed the
decided view that Australia s law and practice was not fully in
compliance with Australia s international obligations.[54] As Breen Creighton
explains, the move to enterprise bargaining:
made it increasingly difficult to justify the
lack of protection against common law liability: first because the
notion that the new province for law and order allegedly
constituted by compulsory conciliation and arbitration could no
longer be said to justify (express or implied) proscription of all
forms of industrial action, and second because the logic of
collective/enterprise bargaining required that workers should have
the capacity lawfully to withdraw their labour as part of the
negotiating process.[55]
In response to the pressures noted above, and taking into
account the ILO s criticisms, the Keating Government passed the
Industrial Relations Reform Act 1993, which (amongst other
changes) amended the Industrial Relations Act 1988 by
defining the scope for legitimate industrial action termed
protected action for the first time in Australia. In short, the
reforms provided protection for industrial action if:
- it occurred in a protected bargaining period for a proposed
single business certified agreement
- the action was directed against that employer
- written notice (72 hours) of the intention to take industrial
action was given by either party.
Protected action was not made available in
relation to:
- the negotiation of non-union agreements
- the determination of awards, or where
- industrial action involved personal injury, wilful or reckless
damage, the unlawful taking of property or defamation.
The protected bargaining period ended when the
bargaining period ended which could occur either because the
parties had reached agreement or because the AIRC suspended or
terminated the bargaining period.
The AIRC was able to suspend or terminate a
bargaining period if it considered that a party:
- was not genuinely trying to reach agreement or
- was not complying with directions to bargain in good
faith.
The Commission could also terminate a bargaining
period if industrial action was threatening to endanger the safety,
health or welfare of the public or cause significant damage to the
Australian economy. Consistent with the objective of encouraging
greater self determination, this was the only ground for suspension
or termination of the bargaining period on which the AIRC could act
on its own motion or on application by the Minister, rather than on
application by a party to the dispute.
Section 127 of the Industrial Relations Act
1988 as amended enabled the AIRC to make orders to stop or
prevent industrial action by persons engaged in public sector
employment. Section 166 required a party who wished to bring
proceedings to recover damages in tort for loss resulting from
unprotected industrial action to apply firstly to the AIRC for a
certificate. Section 166A established a pre-litigation conciliation
period of up to 72 hours before civil actions in tort could be
brought. Revisions were also made to the secondary boycott
provisions of the Trade Practices Act 1974. The provisions
were removed from the Trade Practices Act, inserted in the
Industrial Relations Act and the AIRC was given a greater role in
the application of the provisions.[56]
In support of the 1993 reforms, the Minister for Industrial
Relations, Laurie Brereton, said that the legislation will give
effect to Australia s international obligations in respect of the
rights of workers to engage in industrial action. [57] The explanatory memorandum to
the Reform Act also made it clear that the amendments were
made in response to criticism by the ILO s supervisory bodies that
Australia had failed to meet its obligations under international
conventions:
Australia has in recent years been the subject
of adverse comment made by the ILO supervisory bodies in respect of
the unrestricted exposure of trade unions and their members to
damages at common law for industrial action. The new sections of
Division 4 of Part VIB aim to restrict that exposure in
circumstances where the right to take industrial action is
peculiarly in need of protection.[58]
A number of other changes were also made in 1993, as part of the
process of developing a legislative framework for bargaining and
encouraging greater self regulation at the workplace level.[59] In particular, the
1993 reforms sought to place greater emphasis on conciliation,
rather than arbitration and encouraged bargaining at the workplace
level. Union negotiated collective agreements continued to be
available and in addition, the 1993 reforms introduced the
possibility of non-union agreements negotiated directly between
employers and workers (which were called enterprise flexibility
agreements ). Both forms of agreement were underpinned by
comprehensive awards.
Following the March 1996 federal election, the Howard Government
extensively amended the Industrial Relations Act 1988 and
renamed it the Workplace Relations Act 1996. Reforms
implemented at that time included the paring back of awards to 20
allowable matters and the introduction, for the first time in the
federal sphere, of statutory individual agreements (Australian
Workplace Agreements or AWAs).
Provisions relating to protected bargaining periods and
industrial action were substantially rewritten, including by:
- making protected action possible where the parties were
negotiating an AWA or non-union agreement
- removing the AIRC s ability to make orders to ensure that
parties negotiating an agreement did so in good faith , but
including provision that the parties must genuinely try to reach
agreement before taking protected action
- prohibiting any payments to employees for periods during which
they were on strike
- enabling the AIRC to suspend or terminate a bargaining period
where
- a party taking industrial action was not genuinely trying to
reach an agreement with other parties or
- industrial action would endanger the life, personal safety or
health, or the welfare of the population or part of it, or would
cause significant damage to the Australian economy or an important
part of it
- amending and broadening the scope of section 127 to provide the
AIRC with discretion to give a direction that any
industrial action that was happening, threatened, impending or
probable, and that was not deemed to be protected industrial
action, stop or not occur including action beyond the public
sector. Such orders could be made of the Commission s own motion or
on the application of a party to an industrial dispute, a person
who was directly affected or was likely to be directly affected by
the industrial action
- removing the pre-litigation conciliation period
- restoring the secondary boycott provisions to the Trade
Practices Act.
Action arising from a reasonable concern by an
employee about an imminent risk to health and safety was excluded
from the definition of industrial action.
Further significant amendments were made to the Workplace
Relations Act in 2005 when the Howard Government gained control of
the Australian Senate. The Workplace Relations Amendment (Work
Choices) Act 2005 made significant changes to the industrial
relations legislative framework perhaps the most significant being
those designed to move towards a single, national system of
workplace regulation relying on the corporations and other powers
of the Constitution (rather than the conciliation and arbitration
power). Other key changes included the abolition of the no
disadvantage test for both AWAs and collective agreements, defining
matters which could not be included in workplace agreements (
prohibited content ) and the introduction of a set of legislated
pay and conditions standards which all agreements were required to
meet.
The Work Choices amendments have been extensively described and
reviewed in a number of academic studies.[60] For the purposes of this paper, the
following key changes were made to the arrangements relating to
industrial action. The amendments:
- removed the possibility of protected action in relation to the
negotiation of AWAs
- added new exclusions from protected action, relating to
- industrial action supporting a claim for the inclusion of
prohibited content and
- industrial action in support of pattern bargaining
- strengthened the provisions relating to industrial action
undertaken before the expiry date of an existing agreement to
remove the problem exposed by the Emwest decision (see
discussion further below)
- required industrial action by employees to receive prior
approval by secret ballot in order to attain protected status
- except where industrial action is taken in response to
industrial action by the employer
- reduced the AIRC s discretion in relation to the suspension or
termination of a bargaining period in defined circumstances. For
example, the AIRC must suspend or terminate a bargaining period
- where parties have not complied with AIRC orders or
directions
- where parties have not genuinely tried to reach agreement
- where industrial action threatens to endanger life, personal
safety or health of the population or a part of it or threatens to
cause significant damage to an important part of the Australian
economy
- where industrial action is significantly damaging a third
party
- where industrial action relates to a demarcation dispute
or
- if the AIRC is satisfied that pattern bargaining is
occurring
- reduced the AIRC s discretion regarding remedies for
unprotected action, for example
- the AIRC must make an order against any action that does not
appear to be protected and
- the AIRC is required to issue interim orders against industrial
action if it is unable to determine an application within 48
hours
- removed the requirement that the AIRC s orders must state the
specific industrial action sought to be prohibited
- required the AIRC to suspend a bargaining period involving
protected action if one of the negotiating parties requests a
cooling off period and the AIRC is satisfied that a suspension is
appropriate
- provided a new remedy allowing injunctive relief to be sought
by any person against action to support or advance claims by
pattern bargaining
- enabled proceedings to be initiated in tort without first
seeking a certificate from the AIRC
- required an employee seeking to rely on the health and safety
exemption to prove that he/she had a reasonable concern about an
imminent risk to health and safety (thereby reversing the onus of
proof)
- enabled the Minister to terminate a bargaining period without
recourse to the AIRC if he/she was satisfied that industrial action
was threatening to endanger the life, safety, health, welfare of
the population or part of it, or otherwise damage the Australian
economy or an important part of it in a significant way
- required a minimum deduction of four hours pay in respect of
any period of industrial action
- made the contravention by a person of an order against
industrial action a criminal offence, punishable by 12 months
imprisonment
- confined industrial action by employers to include only
lockouts within the ordinary meaning of that term .[61]
Prior to the 2005 amendments, not all industrial
action was penalised, even if it was unprotected. The AIRC
considered that the power in section 27 of the Workplace Relations
Act created discretion for the Commission to intervene where it
considered it appropriate to prohibit industrial action. The
exercise of the discretion was predicated on the Commission itself
imposing a prohibition on the industrial action to make it
unlawful.[62]
The Work Choices amendments reduce the
scope for protected action (by adding new exclusions from
protected action). In addition, by severely limiting the exercise
of discretion by the AIRC, they heighten the
dichotomy between protected and unprotected industrial
action. They effectively ensure that all unprotected action is
treated as illegitimate and unlawful, regardless of the industrial
or other circumstances.[63] The AIRC must make an order against any unprotected
industrial action occurring in the federal system or affecting a
constitutional corporation and any continuation of the action will
be liable to enforcement action and fines in the courts. Further,
protected action is made more difficult to access
by complex procedures relating to bargaining periods and ballot
processes (considered further below). Even where these provisions
are successfully navigated, there are a number of grounds on which
bargaining periods may be suspended or terminated by the AIRC
thereby ending the protected action. Third parties (that is, not
negotiating parties) affected by strikes are able to bring
proceedings to obtain injunctive relief or damages without first
applying to the AIRC. The Minister may also intervene without
recourse to the AIRC. These changes preclude more industrially
sensitive measures to resolve an issue and place a higher value on
the public interest than on the importance of the parties finding a
lasting solution to a bargaining impasse.[64]
By contrast, Chris Briggs argues that the
provisions of the Workplace Relations Act relating to employer
lockouts are the most liberal or deregulated in the OECD. He points
out that other OECD countries have rejected an equal right to
strike and lockout, reserving lockouts for exceptional
circumstances in recognition of the desirability of maintaining the
broad equilibrium of power that underpins effective agreement
making. He notes that AWA industrial action (including lockouts)
was abolished by the 2005 reforms. However, he suggests that the
ease of access to lockouts available to employers under the
Workplace Relations Act, combined with the myriad of constraints on
employee initiated industrial action, tip the balance of power
firmly in favour of employers and require further reform.[65]
When industrial disputation in Australian was at relatively high
levels during the 1970s, Niland argued that the cost of industrial
action was often exaggerated while its positive value as an agent
of attitudinal change was misunderstood:
Australian employers tend to agonise more over
production loss through industrial disputes than over the same
value of production loss through machine breakdown, inner-city
traffic congestion, or loss through injury, sickness and
absenteeism. Putting the issue into perspective, the case simply
cannot be sustained that time lost through strikes is a major force
in reducing economic activity below what it should be.[66]
Many employers would have disputed this view in the 1970s. Since
that time, however, there has been a dramatic fall in industrial
disputation in Australia (see Appendix B for further
detail). Despite that fall, fears continue to be expressed about a
possible explosion of industrial action and strikes continue to
attract significant media attention, which may suggest that there
is a certain paranoia about strikes which is not evidence
based.[67]
Certainly, with industrial disputes at the lowest levels on record,
a number of commentators have argued that it is very difficult to
defend the imposition of the additional constraints on industrial
action that were introduced in 2005.[68]
Underpinning the decline in industrial action has been a
multitude of economic, social, cultural and structural changes,
including rising living standards, more stable economic conditions,
a fall in trade union membership, displacement of strike activity
by alternative dispute resolution, globalisation, the decline of
the manufacturing sector and the growth of the services sector and
the increased number of women, young people, part-time and casual
employees (see Appendix B for more detail).
Suggestions by some employer representatives that a loosening of
constraints will lead to an explosion in industrial action require
critical consideration against this background. Legislative changes
to the industrial relations framework undoubtedly have had some
impact on the incidence of industrial action, but relaxing
legislative constraints in the context of the continued operation
of other economic, social and structural factors is unlikely to
bring about a significant change in its incidence.
It should also be noted that while employee industrial action
steadily declined from the 1980s, the period of operation of the
Workplace Relations Act has witnessed a significant increase in the
percentage of working days lost to industrial disputes that can be
attributed to employer lockouts. As Richard Sappey et al. note:
The percentage of working days lost in
industrial disputes that can be attributed to employer lockouts has
increased from 1.6% in the years 1994 to 1998, to 9.3% in the years
1999 to 2003 (the period when the Workplace Relations Act 1996 was
in full operation). Moreover, the percentage of long industrial
disputes (i.e. lasting several days or weeks) that can be
attributed to employer lockouts has increased from 7.7% to 57.5% in
the same time periods.[69]
Removal of the right to take protected industrial action in
relation to the negotiation of AWAs in 2005 addressed this trend in
part, as it removed the ability of employers to isolate individuals
through an individual lockout without pay.[70] However, when compared to the
constraints on employee and union initiated industrial action,
employer access to industrial action associated with collective
bargaining remains relatively unfettered (see further discussion
below).
If the reforms of 2005 were not a response to the incidence or
trends in industrial disputation in Australia, what were the
underlying factors behind them? An article published by the
Australian Chamber of Commerce and Industry (ACCI) in 2002
succinctly encapsulated the employer philosophies which the
government supported in its reforms.[71]
The ACCI argued that there were three key conditions that
accompanied the introduction of a right to strike, each of which
was critical to support for legislative recognition of that right
from the employer s perspective:
1. that the right to strike would only be
available as a last resort after there had been genuine
enterprise-based (not industry-wide) bargaining, as well as
attempts at conciliation
2. that the right to strike would only be
exercisable in the negotiation of agreements (i.e. before they were
made, or after their expiry) but not during the life of
agreements
3. that the right to strike could only be taken
over disputes or demands which concerned industrial matters
(matters between employers and employees).[72]
The ACCI argued that the rationale for these
conditions was simple :
once industrial action extends beyond this
single-workplace focus, the justification for providing legal
immunity for strike action disappears and the economic damage that
strikes can inflict escalates.[73]
The ACCI acknowledged the substantial decline in
working days lost to industrial action which had occurred in
Australia, but expressed concern for pockets of industry that were
being beset by industrial action ; naming the Australian
manufacturing industry, the Australian car industry and the
construction industry as areas for concern. The ACCI was concerned
that unions in these industries were pursuing enterprise agreements
with common terms and common expiry dates and that this would lead
to industry-wide campaigns and pattern bargaining which it saw as
incompatible with genuine enterprise bargaining. The ACCI argued
that this outcome breached the first of the three key conditions
for recognition of a right to strike.
The ACCI also argued that the second and third key conditions
for recognition of the right to strike had been undermined by the
Federal Court decisions in the Emwest[74] and Electrolux[75] cases. It advocated that the
government address these concerns and also introduce requirements
for approval of industrial action by a secret ballot and a cooling
off period for protracted industrial action. These arguments
provided support for reforms which had been suggested by the
government as early as 1998 and were implemented by the government
in the 2005 reforms.[76]
In analysing the 2005 reforms, however, it needs to be asked:
have they achieved a fair balance between workers and employers
interests, between social and economic considerations, between
rights and responsibilities, between individual and democratic
rights, and between the public interest and the requirements of
voluntary collective bargaining? Or, has undue politicisation of
the legislative framework allowed the power balance to tip strongly
towards employers to the detriment of effective and voluntary
collective bargaining?
Even before the passage of the Work Choices amendments,
Australia s industrial relations system was subject to criticism by
the ILO for imposing excessive obstacles on the free exercise of
the right to take industrial action.[78] As Colin Fenwick and Ingrid Landau
noted:
the ILO s supervisory bodies have repeatedly
[emphasised] that the right to strike should not be limited to
industrial disputes that are likely to be resolved through the
signing of a collective agreement. 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.[79]
In addition to this general concern, the Committee of Experts
raised specific concerns about the conformity of several
legislative provisions with the legitimate scope for industrial
action. In particular, it has requested the government to amend the
following provisions:[80]
- Section 170MN of the Workplace Relations Act, which prohibited
industrial action in support of multiple business agreements.
Section 423(1)(b)(i) of the Workplace Relations Act as amended by
the Work Choices Act, excludes such agreements from the procedure
for initiating a bargaining period, thereby preventing protected
industrial action in relation to such agreements. The Committee has
repeatedly emphasised that the choice of bargaining level should
not be imposed by law, but made by the parties themselves who are
in the best position to decide this matter.
- Section 187AA of the Workplace Relations Act prohibiting
industrial action in support of a claim for strike pay (section 508
of the amended Act). The Committee has observed that the mere fact
that there are deductions from workers pay for days on strike is
not contrary to the Convention. However, it is incompatible with
Convention 98 to impose such deductions by law in all cases as, in
a system of voluntary collective bargaining, the parties should be
able to raise this matter in negotiations.
- Section 45D of the Trade Practices Act 1974, which
prohibits secondary boycotts and section 438 of Workplace Relations
Act.[81] The
Committee has repeatedly emphasised that a general prohibition on
sympathy strikes is incompatible with Convention 87 and that
workers should be able to take such action, provided that the
strike that they are supporting is lawful.
- Section 170MW of the Workplace Relations Act which provided for
the power of the AIRC to terminate a bargaining period, and thus
the ability to take protected industrial action, when the action
was threatening to cause significant damage to the Australian
economy or an important part of it (section 430(3)(c)(ii) of the
amended Act). The Committee has observed that prohibiting
industrial action in these circumstances goes beyond the definition
of essential services accepted by the Committee (namely, services
the interruption of which would endanger the life, personal safety
or health of the whole or part of the population).[82]
- Sections 30J and 30K of the Crimes Act, 1914 which
prohibit industrial action threatening trade or commerce with other
countries or among states and boycotts resulting in the obstruction
or hindrance of the performance of services by the Australian
Government or the transport of goods or persons in international
trade.
In 2007, the Committee noted that, according to the ACTU, not
only had the Committee s previous comments not been addressed, but
the Work Choices Act introduced additional prohibitions on
industrial action.[83] Specifically:
- preventing the taking of lawful industrial action relative to
pattern bargaining (section 421)
- further narrowing the range of matters which can be the subject
of industrial action by providing that such action is not protected
if it is taken in support of claims which include prohibited
content (section 436)
- tightening the prohibition of industrial action taken in
concert with other parties who are not protected (that is, sympathy
strikes) (section 438). It is now mandatory for the AIRC to order
that such action stop or if it has not yet occurred, that it not
occur
- removing the discretion formerly held by the AIRC in respect of
suspending or terminating a bargaining period in case of danger to
the economy and making it mandatory to do so (section 430)
- making provision for a third party who is affected by the
industrial action to apply for the suspension or termination of the
bargaining period, which must be granted if the AIRC is satisfied
that the employer is adversely affected and economic loss is also
caused to the applicant (that is, without consideration of the
interests of the employees involved) (section 433)
- enabling the Minister unilaterally to issue a declaration
terminating a bargaining period in circumstances including
threatened economic damage, thereby preventing the taking of
protected industrial action (section 498). Section 500(a) provides
for compulsory arbitration in this case with the decision being
binding for up to five years under section 504(3).
The Committee observed that, to the extent that industrial
action which is unprotected under the above provisions may also
fall under the definition of coercion and duress in section 400 of
the Workplace Relations Act, it may lead to heavy pecuniary
penalties under section 407 of that Act.[84]
The Committee emphasised that strikes can be prohibited under
the Convention only in essential services in the strict sense of
the term. That is, the interruption of which would endanger the
life, personal safety or health of the whole or part of the
population and for public servants exercising authority in the name
of the State, in addition to the armed forces and police. The
Committee concluded that:
the prohibitions noted above with regard to
multi-employer agreements, pattern bargaining, secondary boycotts
and sympathy strikes, negotiations over prohibited content that
should otherwise fall within possible subjects for collective
bargaining, danger to the economy, etc., go beyond the restrictions
which are permissible under the Convention.[85]
The Committee requested that the government indicate in its next
report the measures taken or contemplated to bring the Workplace
Relations Act into conformity with the Convention.
The Committee also requested the government to report on
measures taken or contemplated with a view to amending sections of
the Building and Construction Industry Improvement Act
2005 to eliminate excessive impediments, penalties and
sanctions against industrial action in the building and
construction industry.[86]
Academic commentators have agreed that the Work Choices
amendments, while stopping just short of an outright ban on
protected industrial action substantially restricted the
availability of protected industrial action. [87]
The Howard Government initially delayed a response to the ILO s
criticisms of the 1996 reforms by arguing that its 2005 reforms had
made the Committee of Expert s assessment no longer strictly
applicable.[88]
Subsequent information provided by the Howard Government in 2007
has been assessed by the Committee as not having addressed most of
its concerns. In relation to the right to strike, the Committee
expressed its regret that the government had indicated that it was
not intending to adopt amendments to relevant legislation as
suggested by the Committee. However, it also noted that it had been
informed by the Rudd Government following the November 2007
election that it was committed to making substantial amendments to
the Workplace Relations Act.[89]
As we will see below, closer scrutiny by the ILO is likely to
uncover further grounds for objection to those noted above. To
illustrate this point, the following analysis focuses on the
mandatory secret ballot provisions of the Workplace Relations Act
and their interaction with other provisions, as these new
arrangements have not yet been subjected to ILO scrutiny. At a
superficial level of analysis, mandatory secret ballots would not
appear to infringe ILO principles. If asked, most members of the
public and most union members would probably accept secret ballots
as a reasonable requirement. They would likely support the
philosophy that such ballots promote democratic process, protect
union members from coercion and protect society from abuses of
union power . As we will see, however, the devil is well and truly
in the detail of these arrangements. In examining the detail, the
question must be asked: have these provisions, in their design and
application, tipped the balance too far in the direction of
employer interests by virtue of the constraints that are imposed on
access to industrial action?
Rationale for secret ballots
Advocates for secret ballots generally argue that if such
ballots are required before industrial action is taken, a
transparent process will be assured whereby employees can
democratically decide whether to engage in industrial action to
support collective bargaining.[90] According to this view:
many strikes and other forms of industrial
action either are not authorised by the rank and file or are
approved by a show of hands at stop work meetings. These meetings
are often poorly attended by the rank and file and opposition to
official union recommendations is difficult. On this perception,
secret ballots would encourage more participation by rank and file
union members and put a brake on union officials.[91]
In other words, the argument is that it is reasonable to impose
conditions on the internal governance of unions in order to guard
against undemocratic or oppressive behaviour which is detrimental
to the rights of individuals or society at large.
As the Business Council s Study Commission noted, however,
provision for the AIRC to order secret ballots had long existed in
the Industrial Relations Act.[92] Prior to 2005, it was open to either employers or
union members to seek to have the provision brought into action,
but it was rarely used.[93] This led the Hilmer Commission to conclude in 1991 that
the secret ballot is not, in practice, a major priority for
employers. [94]
Graeme Orr and Supiah Murugesan have suggested that in the
context where secret ballots were not mandatory, there were a
number of reasons why such provisions were little used. In
particular, employers were uninterested in inflaming a dispute by
seeking a ballot and the AIRC believed a ballot would add little to
their ultimate role of conciliating and arbitrating a compromise to
the overarching dispute .[95] Segments of union membership are also likely to be
reluctant to bring attention upon themselves and their views by
seeking a secret ballot.
Mandatory secret ballot provisions, by contrast, negate the
reluctance of employees or parties external to the union to request
a vote, as they ensure that ballots take place in all cases. This
is not in itself a bad thing. However, the justification for the
complex and onerous nature of the provisions that were enacted may
be questioned, particularly given:
- the absence of any detailed evidence of abuses of union power
used to support the 2005 proposals[96]
- the historically low levels of industrial disputation
prevailing at the time of the reforms, and since (see Appendix B)
and
- the fact that industrial action is unlikely to be successful
unless it is supported by the majority of relevant employees a fact
which places a firm, voluntary constraint on trade unions. In the
absence of closed shop arrangements, unions which abuse this
principle are likely to lose members which again acts as a
constraint.[97]
Accessing protected action
In order to access protected action under the Workplace
Relations Act, employees or their organisations must: first
initiate a bargaining period; genuinely try to reach agreement;
comply with any AIRC orders and directions; make application to the
AIRC for a ballot order; take part in a compulsory, externally
administered secret ballot (20 per cent of the cost of which must
be borne by the applicant); achieve the necessary endorsement to
meet the ballot requirements; give three days notice of their
intention to engage in industrial action and comply with the
wording on the ballot in relation to the industrial action taken.
An application for a ballot cannot be made before the nominal
expiry date of an existing agreement. Industrial action will not be
protected unless it commences during a 30-day period beginning on
the date of the declaration of the results of the ballot and occurs
within the bargaining period. If another bargaining period is
initiated later, and industrial action is proposed for that later
period, it can only be authorised if a fresh application for a
ballot order is granted and the other steps required by the Act are
completed during that later period. Despite having successfully
navigated through all these requirements, if persons who are not
protected for the purposes of the industrial action (explained
further below) take part in the action, then the industrial action
looses its protected status.[98] Some commentators have suggested that the design
of these arrangements appears to be deliberately complex and
bureaucratic. [99]
The following sections examine some of these requirements and
their implications in further detail. Comparisons are also made
with arrangements for secret ballots in the United Kingdom (UK), as
the Howard Government made reference to the UK when justifying the
introduction of secret ballots for Australia.[100] More detail of UK arrangements
is provided at Appendix C.
Voting requirements
The ILO accepts ballot requirements to endorse industrial
action, but has made it clear that the legal restrictions on the
right to strike should not be excessive:[101]
the ballot method, the quorum and the majority
required should not be such that the exercise of the right to
strike becomes very difficult, or even impossible in
practice.[102]
Authorisation of protected action under the Workplace Relations
Act requires at least 50 per cent of persons listed on the roll of
eligible voters to take part in the vote and more than 50 per cent
of votes validly cast must approve the action.[103] While superficially an
absolute majority seems reasonable, Fenwick and Landau argue that
the procedural burdens relating to voting requirements are highly
likely to be found to be in breach of international law.[104] Orr and Murugesan
agree that there is some force in this argument , particularly in
relation to postal ballots in large enterprises.[105] They cite the ILO s Freedom of
Association Committee, which has held that the:
requirement of a decision by over half of all
workers involved in order to declare a strike is excessive and
could excessively hinder the possibility of carrying out a strike,
particularly in large enterprises.[106]
As Orr and Murugesan point out:
Even a national poll to elect representatives
on the Republican question, via postal balloting, could not
generate a 50% turnout.[107]
White has noted that the ballot requirements adopted are not
only onerous, but may hide the true level of support for industrial
action:
For protected strikes, it is now compulsory for
unions and workers to comply with 45 sections of complex process
requirements. The AIRC polices the process and the Australian
Electoral Commission or a private agency conducts the ballot.
Unions have to ensure a quorum of at least 50 per cent of eligible
voters who must cast a vote, of which more than 50 per cent must
approve the action. Only a simple majority of valid votes cast is
warranted and indeed the quorum rule may hide the true level of
support for the strike. For example, looking at votes in two
workplaces of 100 employees, where in the first 49 employees in the
ballot vote, all in favour of strike action and in the second, 50
employees vote, 26 of them in favour of strike action. In the first
example, strike action would not be authorised, while in the second
it would, even though it would appear that there was greater active
support for the strike in the first workplace.[108]
Postal ballots are the default position under the legislation
and apply unless another method appears more efficient and
expeditious . Despite the fact that attendance ballots have been
affirmed by the Australian Electoral Commission (AEC) as generally
being more expeditious than postal voting, the applicant must
provide evidence on a case by case basis that an attendance ballot
is preferable in the circumstances. If an attendance ballot is
granted, such a ballot cannot take place during working hours.
Further, as a default, the AEC must conduct the ballot, unless the
AIRC is satisfied that another party is fit and proper to conduct a
fair, secret and expeditious vote. If the union is authorised to
conduct the ballot, a suitable independent adviser must be
appointed to ensure the ballot is fair and democratic.[109] The latter
undermines the underpinning philosophy of voluntary collective
bargaining which is based on the parties taking primary
responsibility for their bargaining processes and outcomes.
Providing access to a right to strike to union and non-union
members
McCrystal argues that the complexity of the ballot provisions,
combined with the fact that the cost of administering the ballot is
divided between the Commonwealth (80 per cent) and the applicant
(20 per cent), makes it extremely difficult for non-union employees
to access protected action:
Without the administrative and financial
resources of a trade union, employee negotiators will find it
extremely difficult in larger businesses, to mobilise at least 50%
of employees to participate in the ballot. Further, the imposition
of 20% of the cost of such a ballot is likely to act as a strong
disincentive to applying for a ballot order It is not unreasonable
to suggest that the cost and difficulties associated with absolute
majorities will combine to effectively prevent any protected action
undertaken by non union actors in larger businesses, unless some
assistance is provided by a trade union acting as a bargaining
agent.[110]
Similarly, a joint state and territory government submission to
a Senate inquiry on the legislation pointed to the practical
difficulties for employees:
The secret ballot provisions are complex and
prescriptive. The federal government assumes that someone in the
workplace will have the capacity and the time to make the
application to the AIRC, arrange for the conduct of the ballot with
the [Australian] Electoral Commission and advise the Electoral
Commission of the names of eligible voters. The [Act] does not
entitle employees to any time off work to undertake these tasks, so
employees will have to do this in their own time or seek permission
from their employer to undertake the necessary steps in work time.
This, together with having to pay 20 per cent of the cost of the
ballot, is likely to be a major dampener on employees willingness
and capacity to take industrial action as part of the bargaining
process.[111]
While the procedural difficulties involved for unions are
considerable, the difficulties for non-union employees are
underlined by the fact that, as at 15 May 2008, there had been only
one non-union ballot application made. Importantly, in that case
the application was made with trade union support and assistance so
there have been no non-union ballot applications
made by employees alone.[112]
Opportunities to intervene
The procedural complexity of the protected action and secret
ballot provisions is not limited to voting requirements. As Alex
Bukarica has pointed out, the majority of secret ballot
applications under the Work Choices scheme have been strenuously
opposed by employers for failure to comply with various
requirements of the legislation. In particular, employers have
opposed ballot applications on the basis that: [113]
- the union was not in a validly-initiated bargaining period
- the form of industrial action specified in the ballot questions
was insufficiently specific
- the applicant for a ballot had not genuinely tried to reach
agreement, including because
- the pursuit of prohibited content (such as a provision not
pertaining to the employment relationship) suggests that the union
is not genuinely attempting to reach agreement with the employer
or
- claims were fanciful and did not suggest realistic movement
from opening positions expected during bargaining[114] or
- negotiations have not been exhausted[115]
- the claims amounted to pattern bargaining.
The result is that ballots take weeks and sometimes months to
arrange:
Hearing an application, compiling the roll and
conducting a postal vote and tallying votes are matters that even
if smoothly run must take several weeks. Where an employer contests
the application from many angles the initial application process
alone can take many weeks. Where the employer appeals to a Full
Bench, the process can take several months.[116]
Despite the length of time that it may take unions and employees
to navigate the requirements of the legislation, once endorsed by
an absolute majority of relevant employees, there is only a
relatively short window of opportunity in which protected
industrial action can occur. Industrial action will not be
protected unless it commences during a 30-day period beginning on
the date of the declaration of the results of the ballot.
Splitting the workforce
Where unions negotiating a collective agreement do successfully
navigate the requirements of the secret ballot provisions of the
legislation and industrial action is authorised, further problems
may arise. First, the effectiveness of protected action will be
reduced by the interaction of the ballot and bargaining period
provisions. This is because the scheme embodied in the Workplace
Relations Act effectively precludes union and non-union employees
taking industrial action together in support of common claims for a
single agreement. As McCrystal points out:
if protected industrial action is authorised,
only union members may engage in that action. Non-member
employees, who will ultimately be bound by the collective agreement
if it is passed, cannot support the proposed agreement through
protected industrial action. Further, if non-union
employees do take industrial action in those circumstances, the
whole action is put at risk if the organisation is found to have
acted in concert with unprotected persons.[117] (Emphasis added.)
Non-union members may make an application for a secret ballot to
authorise industrial action, but only where they have initiated a
bargaining period in support of a non-union agreement. This means
that the only way that union and non-union employees can join
together in industrial action in support of a common enterprise
agreement is by seeking to negotiate a non-union agreement.[118] The apparent
incentive in the design of the scheme towards promoting non-union
bargaining may be viewed by the ILO as inconsistent with Australia
s obligations in relation to freedom of association.
Secondly, as Fenwick and Landau emphasise, industrial action
which has otherwise met all the requirements for protected action
will be liable to common law sanction if unprotected persons become
involved:
where industrial action involves persons who
are not protected for the purposes of that industrial action, all
of the industrial action will be invalidated, rendering even those
negotiating parties whose actions would otherwise have been lawful
vulnerable to sanction under the common law (s 438). [119]
One wonders why the scheme has been designed in this way, if not
to weaken support for union bargaining and create an incentive for
non-union bargaining. If mandatory secret ballots are justified to
protect individuals from being coerced to join industrial action,
why should non-union members who voluntarily decide to join union
initiated action at their workplace be precluded from so doing?
Similarly, why should action by unions and their members be tainted
by the activities of non-union members (and thus liable to common
law sanctions and other penalties) if it is in support of common
claims at the same workplace? Indeed, what power does the union
have to prevent non-members from joining union-initiated industrial
action?
Interaction with other provisions
As noted above, when compared to the constraints on employee and
union initiated industrial action, employer access to industrial
action associated with collective bargaining remains relatively
unfettered. Employers are only required to give the required notice
(at least three working days written notice during a bargaining
period) and genuinely try to reach agreement before they can access
protected action.[120]
Other aspects of the Work Choices reforms effectively enabled
employers to end agreements unilaterally after they expired and
negotiate new agreements from the relatively low base of the
Australian Fair Pay and Conditions Standard and any protected award
conditions.[121]
Such action by an employer is sometimes referred to as a partial
lockout in other jurisdictions.[122] However, under the Work Choices scheme
unilateral termination of an agreement was not defined as employer
industrial action. This meant that employees were not entitled to
take industrial action in response to the employer s action without
first going through a secret ballot process, but they were not able
to make an application for a ballot before the nominal expiry date
of the existing agreement. These arrangements made employees
vulnerable to employer action to terminate their collective
agreement before they could initiate the long and complex processes
necessary to access protected action. As such, they undermined the
bargaining position of employees, tipping the balance of power
squarely in favour of the employer.
As noted below, passage of the Workplace Relations Amendment
(Transition to Forward with Fairness) Act 2008 removed the
provisions which allowed either party to terminate a collective
agreement unilaterally after its nominal expiry date had
passed.
Ballot outcomes
Following the passage of the 2005 amendments, Andrew Stewart
speculated that:
Given the hurdles that must now be overcome by
those who wish to take protected action, and the ease with which
employers (or affected third parties) may be able to get lawful
action stopped, it remains to be seen how many unions will bother
to comply with the Act at all.[123]
However, figures published by the AIRC show that during 2006 07,
271 protected action ballot applications were made, of which 182
were granted.[124] The AIRC has noted that there has been no follow-up
research in relation to ballots and the bargaining process, but
observed that [a]necdotal reports suggest that very few ballots
yield a vote against protected action. [125]
Orr and Murugesan also observed that few ballots are lost and
indeed, approval rates are remarkably high . They refer to research
based on data drawn from the AIRC s public records which suggests
that ballots are being approved with average majorities of between
88.6 per cent and 94.3 per cent. As they explain, the lower and
upper ranges reflect the fact that many individual ballots involve
multiple questions, some attracting more support than
others.[126]
Possibly an unintended result of the ballot scheme, is the use
of ballots as a strategic bargaining tactic by unions. Initiating
the bargaining process signals the union s resolve and approval of
industrial action by members signals their determination to the
employer. While there has been no research in Australia into the
extent to which industrial action occurs following approval by
ballot, it may be that the ballot outcome is itself a factor that
encourages employers to make concessions.[127] Certainly, research in the UK has
found that a successful ballot increases the union s bargaining
power without the necessity for industrial action (see Appendix C).
This may explain why there have been a significant number of
applications since 2005, despite speculation that the hurdles were
so great that unions might not bother to comply with the Act s
ballot provisions.
Assessment and comparisons
Clearly, the secret ballot provisions are not so onerous as to
make access to protected action impossible for
unions and their members (as there were 182 successful applications
in 2006 07 alone). However, access for non-union employees is a
different story. It remains to be seen whether the ILO will regard
the secret ballot provisions as so difficult and burdensome as to
infringe its principles regarding freedom of association and the
right to strike. Whatever the ILO s decision, however, the need for
simpler, less burdensome and more balanced procedures is
evident.
More streamlined procedures supplemented by clear guidance
material would be consistent with protection of the right of
individual union members to a democratic approval process. They
would also ensure that union and tribunal (and therefore public)
resources are not channelled into time consuming, costly, litigious
processes of limited practical benefit. Further research could
usefully consider whether the cost and delay associated with the
imposition of complex ballot procedures can be justified in terms
of an improvement in democratic process and outcomes. However, some
specific amendments that might be considered include:
- restricting the ability of employers to intervene in the
pre-ballot process[128]
- enabling the decision to take industrial action to be based on
a simple majority of valid votes cast as applies in the UK and
Canada[129]
- enabling the conduct of the strike vote to be the union s
responsibility, but requiring the union by law to comply with clear
and simple statutory conditions to ensure that the vote is
confidential, timely, and fairly conducted.[130] As a variant of this approach, the
provisions might require a union to appoint a scrutineer to assist
the conduct of the ballot only in large workplaces as occurs in the
UK in relation to workplaces with more than 50 employees
- limiting by short time frames any challenge to the validity of
the vote which seriously calls into question the decision of the
majority[131]
- removing the provisions which invalidate what would otherwise
be protected action where non-union employees voluntarily
participate in industrial action endorsed by union members in
support of a common collective agreement at the same workplace
- or recognising single bargaining units to enable all employees
in a workplace who are negotiating a collective agreement at the
enterprise to be balloted and take industrial action in support of
such an agreement
- enabling the relevant tribunal greater discretion in
determining whether the period in which protected action may be
taken should be extended.
One of the earliest actions of the Rudd Labor Government was the
passage of the Workplace Relations Amendment (Transition to
Forward with Fairness) Act 2008, which removed access to new
AWAs, but created a new form of individual agreement for an interim
period (the Individual Transitional Employment Agreement or ITEAs).
The amendments also clarified that employees on ITEAs (and existing
AWAs) that have passed their nominal expiry dates would be able to
make and approve proposed collective agreements and be eligible to
take part in ballots for protected industrial action. A
no-disadvantage test for individual and collective agreements was
also reintroduced. In addition, the amendments removed the
provisions that allowed either party to unilaterally terminate a
collective agreement after its nominal expiry date had passed. They
instead allowed the AIRC to terminate such an agreement on
application, if it was satisfied that the termination would not be
contrary to the public interest. The amendments also introduced a
new Part to deal with award modernisation.
The removal of AWAs and the reintroduction of a no-disadvantage
test are important steps towards a fairer collective bargaining
system which have been publicised widely. Removing the provisions
that allowed either party to unilaterally terminate a collective
agreement once it had passed its nominal expiry date is also an
important change for the reasons outlined above.
The Rudd Government has indicated its intention to make further
substantial revisions to the Workplace Relations Act by 2010.
Limited change is suggested in the area of industrial action and
change in that area is likely to meet strong opposition from
employer organisations.[132] However, some of the statements in the ALP s
pre-election policy, Forward with fairness (April 2007)
and the related Forward with fairness: Policy implementation
plan (August 2007) suggest possible changes of relevance.
These would apply particularly in relation to:
- The introduction of a legislated requirement to bargain in good
faith which could reduce the need for industrial action to bring a
reluctant employer to the negotiation table.
- The inclusion of flexibility clauses in collective agreements
which could provide scope for flexibilities to reduce tensions
which might otherwise undermine agreements.
- Pattern bargaining will continue to be outlawed, however,
multi-employer collective bargaining may be facilitated by Fair
Work Australia for low paid employees or employees who have not
historically had access to collective bargaining, such as in
community services, cleaning and childcare industries. [133] This may go a small
part of the way towards addressing the ILO s concerns regarding
limitations on the level of bargaining and associated strike
action. However, it is not yet clear how multi-employer bargaining
for low paid employees will work and in particular, whether a right
to strike will be available to support such bargaining. Workers in
the nominated industries tend to be characterised by limited market
power and the inability to use industrial action in support of
multi-employer bargaining would compound their disadvantage. If
access to industrial action is not to be available to support such
bargaining, then the parties should be compensated by the provision
of adequate impartial and speedy conciliation and arbitration
procedures.
- Mandatory secret ballots are to be retained, but the policy
states that they will be conducted in workplaces which suggests
that postal ballots may not continue to be the default. While
silent on the detail of arrangements, the Policy implementation
plan states that a secret ballot should be the means of
determining the views of employees about taking protected
industrial action, not a way of frustrating or delaying the
action (emphasis added). It also states that the
ballot process will be fair and
simple, and will be supervised by Fair Work Australia
[134] (emphasis
added). This suggests recognition of the need to reduce the
complexity of the current arrangements and achieve a fairer balance
for employees and their representatives.
The Forward with fairness policy
statement indicates that employers may take protected industrial
action including locking out employees in response
to industrial action by those employees [135] (emphasis added). This suggests
some support for reform in this area of the type which has been
argued strongly by Briggs. He suggested a number of changes
designed to balance more fairly the bargaining power of employers
and employees, including:
- prohibiting offensive lockouts and those against non-union
employees
- enhancing the power of the AIRC [or its replacement] to
terminate long-running lockouts and to settle such entrenched
disputes equitably
- ensuring that access to lockouts is provided in a way which
does not undermine the ability of employees to associate freely,
access union representation and bargain collectively.[136]
It is beyond the scope of this paper to examine
the case for and against multi-employer or industry bargaining,
despite the implications of that debate for the right to strike. In
the current context in which there is widespread concern over
inflationary pressures, it is unlikely that the Rudd Government
will loosen the constraints on multi-employer bargaining beyond
those noted above. However, in the longer term, there may be some
value in a rigorous examination of this issue. Such a study could
consider whether providing some further scope for and legislative
recognition of multi-employer or industry bargaining would be
beneficial in light of the changing nature of work and in
particular, the fact that the workforce is more mobile now than it
has been in the past. In this context, some academics have
suggested that new models of employee representation and more
corporatist models of bargaining may be required to address issues
such as industry restructuring, industry training arrangements and
portability of benefits.[137]
The continued need for collective bargaining, at least at the
level of the workplace and enterprise, has not been seriously
questioned. It is supported by all major political parties,
employer associations and employee organisations. However, limited
attention has been paid to the necessary requirements of stable
collective bargaining systems, including the importance of a right
to strike. A poorly understood characteristic of collective
bargaining is that stable collective bargaining relationships are
dependent on reasonably even power bases existing between the
parties and a defined right to strike (and limited rights to
lockout) have an important role to play in this regard.
This paper has outlined the major legislative developments
relating to the right to strike in the federal sphere since 1993,
with particular reference to the 1996 and 2005 reforms implemented
under the Workplace Relations Act. It has summarised the response
of the ILO to those reforms, considered the secret ballot
provisions in more detail and overviewed assessments made by
academics and other commentators.
The overwhelming finding from this analysis is that the
legislative framework no longer strikes an appropriate balance
between worker, management and broader social interests so far as
the regulation of industrial action is concerned. Changes
implemented in 2008 have commenced the process of re-establishing
that balance and the ALP s pre-election policy suggests some
further scope for change. However, there is a case for a thorough
review of what has become a complex and onerous set of provisions
that are designed to impede and impair, rather than provide access
to a right to strike. The impact and implications of these
provisions can only be understood by closely examining the
interaction of multiple provisions throughout different parts of
the legislation. In reviewing and revising these provisions it is
essential that policy makers have regard to:
- the requirements of stable, voluntary collective bargaining
systems
- the need to strike a fair balance between the interests of
workers, employers and the public not destabilising the system by
swinging the pendulum too far in favour of the public, employers or
workers
- the need to avoid unnecessary regulatory burden and complexity
with its associated costs for organisations and the community.
In ensuring that a fair balance is struck between the interests
of the parties and those of the broader public, the conventions
established by the ILO through its tripartite processes, and the
principles established by its supervisory bodies in interpreting
the application of those conventions, can provide useful guidance.
The right to strike as recognised by the ILO is not absolute and
may be subject to a range of legal conditions, restrictions and
prohibitions. These conditions have been designed to balance
competing interests whilst ensuring that the preconditions for
stable collective bargaining are met. A legislative framework which
finds a fair balance between workers and employers interests,
social and economic considerations, rights and responsibilities,
individual and democratic rights and the requirements of voluntary
collective bargaining will provide a stable, lasting foundation for
encouraging mutually beneficial and cooperative relations.
Award restructuring
A process established in 1987 which involved the simplification
of awards by removing out dated and complex classifications and the
modernisation of awards by the inclusion of provisions on training
and career paths.
Bargaining power
Bargaining power has been defined as the ability of one party to
inflict costs onto another in an attempt to bring about attitudinal
change.[138] It
is an important determinant of the terms of exchange achieved by
bargaining parties.
Certified or collective agreements
Agreements (union and non-union) approved by the Australian
Industrial Relations Commission prior to the Work Choices
amendments were referred to as certified agreements . Following the
Work Choices amendments they became collective agreements .
Closed shop (or union shop)
A workplace where an agreement between the union and the
employer requires the employer to engage only union members or
persons who agree to join the union within a specified period of
time.
Corporatist bargaining
Corporatism gives government recognition to major economic and
interest organisations by granting them a major voice in policy
making in return for their cooperation. Corporatist bargaining
involves economic and interest organisations participating in the
negotiation of matters such as wages and incomes policies.
Corporatist approaches were common in Western Europe and played a
role in Australia in the 1980s (for example, the Accord-based wages
system and specific industry restructuring plans).[139]
Corporations power
The provision of the Australian Constitution which gives the
federal government the power to make laws related to foreign
corporations and trading and financial corporations formed in
Australia (section 52(xx)). Used in more recent years together with
other Constitutional powers as a foundation for the federal
workplace relations system.
[140]
Managerial prerogatives
The right of management to make unilateral decisions over
certain issues considered to be beyond the scope for bargaining.
The limits of such prerogatives are not fixed and tend to change
over time as social attitudes change.
No disadvantage test
A test that required the regulatory authorities (such as the
Australian Industrial Relations Commission and the Employment
Advocate) to examine the conditions set down in an agreement
(individual or collective) to ensure that its terms and conditions
did not disadvantage employees when compared with conditions under
previously applying regulatory arrangements.[141]
[142]
Pattern bargaining
Pattern bargaining is a trade union strategy which has been used
over a long period across a number of countries. It can involve a
trade union securing a new and superior entitlement from one
employer by agreement and then using that agreement as a precedent
to demand the same entitlement or a superior one from another
employer(s). However, it may also involve unions seeking to
establish common conditions across agreements in recognition of the
mobility of their members and the fact that their members may be
performing similar work within an industry or occupation. The
Workplace Relations Act 1996 defines pattern bargaining as
a course of conduct by a negotiating party in respect of two or
more proposed collective agreements. That course of conduct must
extend beyond a single business and involve seeking common wages or
conditions for two or more proposed agreements.
Picketing
Picketing is a form of industrial action in which those involved
generally gather outside a place of work as a form of protest. They
may attempt to persuade or stop others (such as non-union members
or suppliers) from entering the place of work (or crossing the
picket line ) or they may merely seek to publicise their cause. The
latter may be designed to put pressure on an employer through
adverse publicity.
Productivity arbitration
A process akin to productivity bargaining in which an arbitrator
requires employees to adopt more productive work practices in
return for improved wages and conditions.
Protected industrial action
Industrial action which is protected by statutory provisions
from judicial action which might otherwise be taken at common law
(for example for breach of contract).
[143] A secondary
boycott generally occurs where a union which is negotiating with an
employer (the first employer) calls on other unions or its own
members engaged by another employer(s) to undertake industrial
action in support of claims against the first employer. Some regard
such action as imposing unacceptable constraints on the operation
of the market and also unfairly involving third parties in disputes
in which they have no direct interest as they do not have a place
at the negotiation table.
Strikes
Strikes are a form of industrial action. They involve a stoppage
of work (which distinguishes them from go-slows or overtime bans).
It is a temporary stoppage of work as employees expect to return to
work for the same employer after the strike is over. A strike is a
collective act involving a group of employees. It is generally a
calculative act in that it is designed to express grievances, seek
a solution to problems, apply pressure or enforce demands.[144]
Sympathy strikes (also see secondary boycott and
picketing)
A sympathy strike occurs where one union strikes in support of
another, even though the union is not a party to negotiations with
the employer. Refusing to cross a picket line is a common form of
sympathy action.
Analysis of industrial dispute data shows that a significant
fall in the number of disputes, the total working days lost to
disputes and the working days lost per employee occurred during the
1980s. The decline continued during the 1990s and through the
current decade so that by 2007 industrial disputation was the
lowest on record (see table and figures below for further
detail).
The dramatic fall in industrial disputation which occurred
through the 1980s and 1990s is in some senses surprising given that
1993 saw the introduction of a right to strike and the period since
the late 1980s witnessed a shift away from centralised wage
determination and a move to greater enterprise bargaining. These
are circumstances which many observers may have predicted would
produce an increase in industrial disputation.
A number of commentators have examined the reasons for the
decline in industrial action. In relation to the initial decline,
Woden has argued that:
While the decline in strike levels has not been
unique to Australia, it is difficult to escape the conclusion that
the Accord policy which operated between the federal Labor
Government and the ACTU between 1983 and 1995 was responsible for
much of the decline the hypothesis that the Accord years were
responsible for a marked decline in disputation levels that cannot
be explained by other economic or institutional phenomena receives
strong support from econometric research [145]
Relatively high levels of unemployment and the structural
decline of the manufacturing sector have been identified as
probable causes of the continued decline in industrial disputation
during the 1990s.[146]
Despite the demise of the Accord, an improved labour market and
a legislated right to strike, industrial disputation continued to
fall through the first decade of the 21st century. A
number of possible explanations have been proposed
for this trend, which has occurred not only in Australia, but also
across many other developed countries.[147] These explanations include:
- A cultural shift away from traditional adversarial relations to
more cooperative approaches between management and workers, perhaps
associated with enterprise bargaining.[148]
- Rising living standards, more stable economic conditions, the
fall in trade union membership, displacement of strike activity by
alternative dispute resolution and globalisation distancing workers
from the source of decision-making.[149]
- The concept of protected industrial action requires careful
planning and notice and may have had a psychological effect on both
labour and management. Most unions now tend to think about
organising industrial action only when it can be protected. As a
result, it is less common for disputes to erupt and where they do,
they are generally the product of spontaneous activity by workers,
rather than union endorsed action.[150]
- The increasing difficulty of accessing protected industrial
action due to the constraints imposed and the enhanced sanctions
for illegal strike activity, combined with a change in union
strategy against a background of declining union
membership.[151]
- The growth of the service sector has generated a new workforce
with little or no historic association with organised
representation. This, combined with other structural changes in
business organisation and greater reliance on employing women,
younger workers and part-time and casual employees has been said to
encourage labour relations to move towards the individual system
and away from bargaining with a consequent decline in industrial
disputes.[152]
- Where industrial discontent persists, it is being manifested in
more individual forms, such as absenteeism and labour
turnover.[153]
|
Calendar
year
|
Number of
disputes which occurred during the year
|
Workers involved
directly and indirectly ( 000)
|
Working days
lost
(
000)
|
Working days
lost per employee
|
|
1967
|
1340
|
482.3
|
705.3
|
0.176
|
|
1968
|
1713
|
720.3
|
1079.5
|
0.261
|
|
1969
|
2014
|
1285.2
|
1957.9
|
0.458
|
|
1970
|
2738
|
1367.4
|
2393.8
|
0.555
|
|
1971
|
2404
|
1326.5
|
3068.5
|
0.693
|
|
1972
|
2298
|
1113.8
|
2010.3
|
0.449
|
|
1973
|
2538
|
803.0
|
2634.6
|
0.570
|
|
1974
|
2809
|
2004.8
|
6292.3
|
1.320
|
|
1975
|
2432
|
1398.0
|
3510.1
|
0.742
|
|
1976
|
2055
|
2189.9
|
3799.1
|
0.803
|
|
1977
|
2090
|
596.2
|
1654.9
|
0.350
|
|
1978
|
2277
|
1075.6
|
2130.7
|
0.432
|
|
1979
|
2042
|
1862.9
|
3964.3
|
0.785
|
|
1980
|
2429
|
1172.6
|
3319.8
|
0.649
|
|
1981
|
2915
|
1247.2
|
4189.3
|
0.797
|
|
1982
|
2060
|
706.1
|
1980.4
|
0.358
|
|
1983
|
1787
|
470.2
|
1641.5
|
0.249
|
|
1984
|
1965
|
560.3
|
1307.4
|
0.248
|
|
1985
|
1895
|
570.5
|
1256.2
|
0.223
|
|
1986
|
1761
|
691.7
|
1390.7
|
0.238
|
|
1987
|
1519
|
608.8
|
1311.9
|
0.219
|
|
1988
|
1508
|
894.4
|
1641.4
|
0.265
|
|
1989
|
1402
|
709.8
|
1202.4
|
0.184
|
|
1990
|
1193
|
729.9
|
1376.5
|
0.207
|
|
1991
|
1036
|
1181.6
|
1610.6
|
0.250
|
|
1992
|
728
|
871.5
|
941.2
|
0.147
|
|
1993
|
610
|
489.6
|
635.8
|
0.100
|
|
1994
|
560
|
265.1
|
501.6
|
0.075
|
|
1995
|
643
|
344.3
|
547.6
|
0.079
|
|
1996
|
542
|
577.4
|
928.7
|
0.132
|
|
1997
|
447
|
315.4
|
534.2
|
0.075
|
|
1998
|
520
|
348.4
|
526.3
|
0.072
|
|
1999
|
731
|
461.2
|
650.6
|
0.087
|
|
2000
|
700
|
325.4
|
469.1
|
0.061
|
|
2001
|
675
|
225.7
|
393.1
|
0.050
|
|
2002
|
767
|
159.7
|
259.0
|
0.033
|
|
2003
|
643
|
275.6
|
439.4
|
0.054
|
|
2004
|
692
|
194.0
|
379.8
|
0.046
|
|
2005
|
472
|
241.0
|
228.3
|
0.026
|
|
2006
|
202
|
122.7
|
132.6
|
0.015
|
|
2007
|
135
|
36.0
|
49.7
|
0.005
|
Source: B. Dabscheck, The arbitration system since 1967 , in S.
Bell and B. Head (eds.), State, Economy and Public Policy,
Oxford University Press, Melbourne, 1994; and ABS, Industrial
Disputes, Australia, electronic delivery, ABS Cat. No.
6321.0.55.001.
Note: The Australian Bureau of Statistics collects statistics in
relation to disputes involving stoppages of work of ten working
days or more at the establishments where the stoppage occurred. Ten
working days is equivalent to the amount of ordinary time worked by
ten people in one day, regardless of the length of the stoppage,
for example, 3000 workers on strike for two hours would be counted
as 750 working days lost (assuming an eight hour working day).
Source: B. Dabscheck, The arbitration system since 1967 , in S.
Bell and B. Head (eds.), State, Economy and Public Policy,
Oxford University Press, Melbourne, 1994; and ABS, Industrial
Disputes, Australia, electronic delivery, ABS Cat. No.
6321.0.55.001.
Figure B2: Number
of working days lost to industrial disputes ( 000), Australia, 1967
to 2007
Source: B. Dabscheck, The arbitration system since 1967 , in S.
Bell and B. Head (eds.), State, Economy and Public Policy,
Oxford University Press, Melbourne, 1994; and ABS, Industrial
Disputes, Australia, electronic delivery, ABS Cat. No.
6321.0.55.001.
Figure B3: Number of employees involved in industrial
disputes ( 000), Australia, 1967 to 2007
Source: B. Dabscheck, The arbitration system since 1967 , in S.
Bell and B. Head (eds.), State, Economy and Public Policy,
Oxford University Press, Melbourne, 1994; and ABS, Industrial
Disputes, Australia, electronic delivery, ABS Cat. No.
6321.0.55.001.
Figure B4: Working
days lost to industrial disputes per employee, Australia, 1967 to
2007
Source: B. Dabscheck, The arbitration system since 1967 , in S.
Bell and B. Head (eds.), State, Economy and Public Policy,
Oxford University Press, Melbourne, 1994; and ABS, Industrial
Disputes, Australia, electronic delivery, ABS Cat. No.
6321.0.55.001.
When supporting the introduction of secret ballot arrangements,
the Howard Government noted that secret ballots, which had been
operating in the UK since 1984, had been retained by the Blair
Government s Employment Relations Act 1999 and had the support of
trade union leaders.[154]
The requirement for secret ballots was introduced by the
Thatcher Conservative Government through the Trade Union Act 1984.
1993 amendments to that legislation made postal ballots compulsory.
Under the legislation, procedural requirements were stringent and
employers were frequently successful in having ballot results
overturned for minor infringements (see further below). When a
ballot was overturned, the union was required to restart the ballot
process. Under the legislation, unions were liable for unauthorised
or unofficial industrial action, unless they could prove that they
had taken all reasonable steps to prevent such action.
The Blair Government s Employment Relations Act 1999 retained
provision for secret ballots, but required that an honest
procedural mistake needed to be significant enough to potentially
change the result of the ballot before it could be used to overturn
the result. The Blair Government retained provision for union
liability for unauthorised or unofficial industrial action.
However, it passed procedural amendments which made it easier for
union officials to establish that they had attempted to prevent
unauthorised industrial action.
In the UK, there is no legal protection for union members taking
industrial action unless any agreed procedures
have been completed, all other means of resolving the dispute have
been considered and it has been authorised by a secret ballot. By
law, unions in the UK must give employers at least seven days
notice of a ballot, stating that the union intends to hold a
ballot, the date which the union reasonably believes the ballot
will be held and any other information the union has which would
assist the employer to make plans. The union must also give the
employer a sample voting paper at least three days before the
ballot. Ballots can be carried by a simple majority of valid votes
cast. If workers vote in favour of industrial action, the action
must begin within four weeks of the ballot. This
period may be extended to up to eight weeks after the ballot, but
only if both the union and employer agree. In some circumstances
the union may also apply to the court for an extension.
Key differences between the UK and Australian arrangements are
as follows. In the UK:
- The union is not required to apply to a tribunal before it can
initiate a ballot. The union itself can determine that a ballot
should be conducted.
- There is no tribunal oversight of the ballot. The union must
provide notice to the employer(s), but it is responsible for making
sure that the ballot is conducted in accordance with the
legislation and the associated Code of Practice.
- The union is required to appoint a qualified person as the
scrutineer of the ballot where more than 50 members have an
entitlement to vote, but is not required to use a scrutineer where
50 or fewer members are entitled to vote. In the latter case, the
union itself may conduct the ballot and is required to ensure that
the votes are fairly and accurately counted.
- The union must ensure that the scrutineer carries out the
functions required to be part of his/her terms of appointment and
that there is no interference with this function from the union.
The scrutineer must also satisfy themselves that what is done
conforms to legal requirements.
- The validity of the ballot is not affected if the union
subsequently induces members to take part in, or continue with
industrial action
- who were not members at the time of the ballot or
- who were members, but it was not reasonable for the union to
expect (at the time of the ballot) that they would be called upon
to take action (for example, because they changed jobs after the
ballot).
- It is possible for a union to hold a single ballot for more
than one workplace, provided that
- at each of the workplaces covered by the single ballot there is
at least one member of the union affected by the dispute or
- entitlement to vote in the single ballot is given, and limited,
to all of a union s members who are employed in a particular
occupation or occupations by the employer or any of a number of
employers with whom the union is in dispute or
- entitlement to vote in the single ballot is given, and limited,
to all of a union s members who are employed by a particular
employer or any of a number of employers with whom the union is in
dispute.
- Where a single ballot across a number of workplaces is held and
the majority is in favour of industrial action, it is lawful for
the union to organise industrial action at any such workplace. This
means that ballots and legally protected industrial action may be
taken in relation to multi-employer bargaining. In the case of a
multi-employer ballot, industrial action can only be taken at
workplaces where a majority supported industrial action.
- Unions meet all the costs of conducting ballots, but have
greater control over the ballot process and the scope of protected
action than Australian unions. A ballot refund scheme initially
established in the UK to recompense unions for the cost of
conducting ballots was phased out between 1993 and 1996.
- Individual employees who participate in industrial action may
face action for breach of contract and can be dismissed. However,
employees dismissed within eight weeks of the commencement of
legally protected industrial action can claim unfair
dismissal.
Other aspects of the UK arrangements have
similarities with Australian arrangements; in particular, the
statutory immunity for industrial action only applies where:
- there is a trade dispute that is, a dispute between workers and
their own employer which is wholly or mainly about
employment-related matters
- the action is not secondary action (unless the action involves
peaceful picketing at the picket s own place of work, which is
allowed under UK law)[156]
- the action does not involve unlawful picketing
- the action is not intended to promote union closed shop
practices, or to prevent employers using non-union firms as
suppliers
- the action is not in support of any employee dismissed while
taking unofficial industrial action.
Researchers have found that successful ballots in
the UK have had the effect of improving the bargaining position of,
and strategies available to unions. This is because ballots can
demonstrate the commitment of the union membership to the proposed
industrial action and provide legitimacy to industrial action (both
in the minds of union members and members of the public).[157] Studies have shown
that participation in ballots and the proportion of ballots
returning yes votes has generally been high. However, most ballots
are not followed by industrial action. Often, strike action is
unnecessary, because a successful ballot clearly indicates to the
employer the level of support for industrial action.[158] Detailed procedural
requirements provided an avenue for employers to challenge the
legality of industrial action on the basis of faulty procedures,
particularly in the years prior to the Blair Government s
amendments. Unions criticised the scope for employers to mount
legal challenges on matters of marginal detail.[159] In some cases, commentators
observed that such action by employers made the resolution of the
dispute more difficult.[160]
[75]. In the Electrolux case the Federal Court found that
protected action could be taken over a union demand for any matter
so long as the demand was genuinely what the striking party sought
that is, it was permissible to engage in industrial action over non
employment matters such as the levying of trade union bargaining
fees on non-union members. The Federal Court decision was
subsequently appealed to the High Court (Electrolux Home
Products Pty Ltd v AWU & Others (2004) 221 CLR p.
309). The High Court found that to be validly
certified, an agreement must be wholly about matters pertaining to
the relationship between the employer and employees, in their
capacity as employees.
[100]. For
example, see Tony Abbott, Minister for Employment and Workplace
Relations, Second reading speech: Workplace Relations Amendment
(Secret Ballots for Protected Action) Bill 2002, House of
Representatives, Debates, 13 November 2002, pp. 8854 8855.
Reference was also made to Canada. For information on secret ballot
arrangements in Canada, see International and Intergovernmental
Labour Affairs, Labour Branch, Human Resources and Skills
Development, Canada Labour Code (Part 1), Canada,
January 1, 2006, http://www.hrsdc.gc.ca/en/lp/spila/clli/irlc/fed-e.PDF,
accessed 5 June 2008.