What is real power for workers? It’s time for a sharper focus on ”the right to strike”
The Australian union movement’s Change the Rules Campaign (CtR) aims to reform the Fair Work Act 09 (FWA09) in favour of workers and their unions. Launched just one year ago, CtR jumped to a new level over several recent May Days with public actions in cities and towns all over Australia. For me, 2 great highlights were the magnificent and inspiring march and rally in Melbourne on May 9th, and the action taken on May 1st itself by the ACT Trades and Labour Council. The ACT Unions were the only Australian labour council to take action on May 1st itself.
The campaign is growing. It features mainstream media publicity, workplace and local community organization, similar to the Rights at Work campaign that started in 2005, and the discussions at the Change the Rules Activists and other Facebook pages, as it moves to a new stage.
This new stage also moves towards the national election. In that context, the ALP, the Greens and, of course, the union movement itself will intensify the discussion about how the campaign can help defeat the Liberal-National Party government. And, the employer organizations, specific powerful employers in their own right, the mainstream media, and the Liberal-National Party (LNP) government will sharpen and escalate their opposition to new rights for workers and their unions. They believe that a popular majority can be frightened into rejecting a genuine shift in power based on a “right to strike”.
The “right to strike” and multi-employer bargaining, including Award based bargaining rights, will be 2 important indicators of tensions within the labour movement. Such tensions are inevitable, normal and healthy, and have a long history.
The forthcoming ACTU Congress and ALP Federal Conference in Adelaide a couple of weeks later will probably show more of how this tension unfolds.
How the newly emerging activists and leaders at the mid-level of the union movement will handle the issues at stake is unknown. But how they do handle the situation will shape the campaign and the years ahead. Many emerging activist leaders at the middle level will enter this struggle with no personal experience of being in a strike.
The Meaning and Impact of the Right to Strike on union repression and Union Growth
The FWA09 restricts workers’ right to strike so severely it is almost meaningless against an array of powers provided to employers to control grievances, disputes of all kinds, industrial award changes, and enterprise bargaining. In effect, the FWA09 denies the “right to strike”.
Therefore, against this, all Workers must have the right and capacity to strike they are members of unions, or not.
The right and capacity to strike is the countervailing power of workers to the employers’ unrestricted right to withdraw their capital, or to move it from productive activity to non-productive forms of profiteering, or to re-locate it in another country.
A new government must repeal the extra laws that have been imposed to repress, penalize and restrict the democratic rights of construction and allied workers, including shutting down the Building and Construction Industry Commission.
The ideas that follow assume that Australia’s legal system continues under the Corporations power of the Constitution and not the Conciliation and Arbitration power. 
The “right to strike” for workers and their unions should apply to a range of real situations, like as follows:
- Their boss underpays them or breaches an award, statute, or enterprise agreement, or imposes redundancies, or assaults their dignity by bullying, harassing, and forcing unsafe work practices. This is the most important application of the “right to strike” for union re-growth. In such disputes, when workers have a strike power, workers themselves re-discover the logic of “being union” and re-growing union membership. The parties to a dispute can determine whether the dispute goes to the FWC in the given circumstances.
- Negotiating an agreement / enterprise agreement, including multi-employer agreements (e.g. in a supply chain), or a dispute that is active across a group of employers.
- Negotiating an award improvement or with a group of employers;
- Giving solidarity support to other workers; current penal powers – fines, common law damages, the threat of jail, and so on must be withdrawn, especially the “secondary boycott” prohibition (so-called, actually a solidarity action):
- Governments do something that damages workers’ job security or standard of living or democratic participation in the society
- In all contexts workers must have the right to strike for demands and negotiations that enable them more effective say in the role and purpose of their work. This extends democracy into the workplace, against dictatorial corporate / executive and Board of Directors control.
 The Howard government’s changes in 2005 shifted the head of power to the Corporations Power (S. 51.xx) in the Constitution instead of the Conciliation and Arbitration Power (s.51.xxxv). Under the latter, although there was no legal right to strike through most of the 20th century, there was a sort of “right” to create a dispute (available to workers and bosses) that was either real (ie industrial action or the threat of it) or “paper”. This “right” activated a mindset among workers about being able to use industrial action to get the dispute to the Commission for conciliation and or arbitration, and thus put pressure on both the employer(s) and the Commission for a positive resolution. What does this mean for Change the Rules demands? There has been zero talk about switching the law back to the s.51.xxxv underpinning. In other words, Howard’s law – ie Corporations Power – is left unchallenged, just as J Gillard manoeuvred for and achieved in 2007-9. The bosses love that.
Part 2 to follow