Some thoughts on “the right to strike” and the Change the Rules Campaign – Part 2

The “right to strike” versus employer opposition and Laborist naivete

The “right to strike” is one of two (see below) demands that would change the “balance of power” towards working people in a “fair dinkum” way.

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”.

The right to strike is the countervailing power to the employers’ unrestricted right to withdraw their capital or to transform its use from productive activity to non-productive forms of profiteering, or to re-locate it in another country.

In struggling for a genuine “right to strike” the labour movement is seeking to change a law that a Labor government established in 2009, and that its union leaders consented to. At that time, most activists in that great struggle went to sleep, believing that what Labor was delivering was adequate. Those who did try to explain the serious shortfalls of FWA09 were criticised (not “team players”) and marginalized. That minority have now been proven to be correct.

There is a lot of other detail, also quite important, that will be contested terrain in the months ahead but also perhaps more amenable to agreement. For example, in enterprise bargaining FWA09 empowers employers to use just a few workers (who may not even work under the proposed agreement) to create an enterprise agreement that will cover many other workers who do work under the Agreement. Such enterprise agreements reduce wages, conditions and rights against previously established standards. Also, agreement might be reached to restrict or prevent employers from taking on workers as “self-employed”, individualized workers to drive down wages and conditions.

Laborist discomfort with the “right to strike”: tensions to emerge

Again today, not everyone is comfortable about changing the rules to enable an unrestricted “right to strike”. Some, especially in the parliamentary wing of the ALP  will argue that this change will harm the ALP’s election prospects. They also have some supporters in the leadership of the union movement, at both peak and mid-levels.

Generally speaking, they are comfortable with a minimalist programme of change to the FWA09, one that does not upset the employers or the voting public too much. They believe that the antagonisms between workers and their unions on the one hand, and employers on the other, are not fundamental or severe and can be managed with minimal conflict.

Instead, the minimalists prioritize more power to the Fair Work Commission (FWC) to arbitrate disputes, some modest rights for unions to access workplaces and create disputes for arbitration, and tougher limits on employers using their “lock out” and “termination of agreement” powers in enterprise bargaining.

It should be noted and discussed that the recent and important ACTU pamphlet, “The system is broken- Big Business has too much power”, does not mention the “right to strike” issue in “changing the rules”.[1] Restoring stronger arbitration power to the Fair Work Commission does not give more power to workers.

Usually, the advocates of minimalist and technocratic change, will invoke “pragmatism” as the logic for this approach.

But really, their “pragmatism” is the height of “naïve idealism” because it leaves fundamental employer power intact and assumes that employers will not take advantage of that, and that workers’ power is not necessary for the FWC to treat workers fairly. The minimalist approach assumes that workers themselves cannot exercise their power democratically and effectively, and therefore cannot give their unions more power.

In the real world, a more fundamental reform programme is necessary. Fundamental reform enables a more decisive shift in the balance of power towards workers and their unions at both workplace and industry levels.

The unfettered right to strike is the most important element of reform, including in Award based bargaining (see below).

Direct strike power to workers enables workers, including through their unions, to do what unions were originally formed to do: limit and prevent the employers’ use of the competition threat to freeze and drive down wages, conditions and rights. It gives effect to the democratic idea that workers themselves, in their unions or in other types of combination, should be enabled to exercise their potential power against the powers of the employers. Thus, workers themselves are more in charge of their present and future.

Also, it brings Australia into real alignment with agreed ILO minimum standards on workers’ rights to organise and bargaining collectively.[2]

Bargaining rights: enterprise bargaining, “supply chain bargaining” and Award bargaining

In some union discussions “supply chain bargaining” appears to be the multi -employer bargaining that is quite popular. As one form of “multi-employer” bargaining it is not objectionable, provided its serious limits are not ignored or glossed over.

In a “supply chain” the focus is on a group of employers who are in “cooperation” with each other to deliver a product or a service to its ultimate customer. However, first there is usually one employer who is the main controller of everything else in the chain. Also, each employer link in the chain is likely to be in competition with an employer who is not in the chain. The competitor not in the supply chain might like to be and can offer lower wage costs as the competitive edge to get into it.  Or, the competitor might be in a competitive supply chain able to deliver the same or a similar product to a similar or the same type of customer at a lower wages standard.

Therefore, there are real limits on how “supply chain bargaining” deals with the problem of the downward pressure on wages etc that is created by uncontrolled competition between employers in the same industry or type of business, nor how it deals with the 21st century reality of global supply chains.

On the other hand, the enabling of a new form of Award based bargaining (that includes a “right to strike”) is a big step toward limiting, maybe preventing in some circumstances, the employers’ competition power.  How changes to Awards are processed these days is a big part of the broken rules of the FWA09.

Every effort should be made to bring together experienced and new worker activists to discuss how to advance the fundamental and comprehensive approach. Those in the parliamentary Labor Party and unions who seek, as they have before, to dilute proposals to establish a legal “right to strike”, can be challenged and pushed back.

Other significant factors that shape this struggle for genuine and fundamental strengthening of workers’ powers

There are other factors that do influence how this struggle might evolve in the months and years ahead. One of them is the rapid change in the composition of the workforce. There is also union density currently running at about 12-14% overall. This has to be taken into account in developing programme, priorities, strategy and tactics, and shape how the “the right to strike” can be achieved. Just calling for the “right to strike” in the most militant manner possible will simply not be adequate for the situation we face. And, there is the timing of the national election.

Sally McManus (ACTU Secretary), and other union leaders who have stressed the continuation of the campaign after the next election, are correct to do so. If the Labor Party wins, including with Greens support, a continued campaign will require a clear and determined strategy very different to the collapse of the Your Rights at Work campaign over 2007-9. It will not be adequate to declare, as in 2009, that there is “unfinished business” and then do nothing about it.

The labour movement’s strategy must aim to bring 21st century workers into the experience of struggle, with a new foundation in which they discover directly in their own workplaces and across their industries and regions, the great untapped and democratic potential of their power in combination. The workers themselves, including through their union membership, reveal the power of any appeal to “join their union”.

[1] The “right to strike” issue is put forward in the more comprehensive ACTU Campaign Kit at pp 34-35: here: https://d3n8a8pro7vhmx.cloudfront.net/actuonline/pages/814/attachments/original/1521588484/ctr_campaignkit2018_digital.pdf?1521588484

[2] Andrew Stewart provides a summary of the issues at stake re the ILO standards here: http://communitywebs.org/labourhistory/wp-content/uploads/2016/05/Right-to-strike.pdf