We have a right to strike

 

Ms BUTLER (Griffith) (16:32):  This bill, the Competition and Consumer Amendment (Competition Policy Review) Bill 2017, seeks to further erode Australian's right to strike by amending laws that are presently in the competition and consumer law but are, inherently, industrial in character. We have a serious problem in this country. Working people are becoming less powerful. This is reflected in increased profit share of national income at the expense of the labour share and in persistently low wages growth. This year, we saw a situation where the wage price index was less than CPI. Wages grew more slowly than consumer prices did. This meant that Australians took a real pay cut. Far from the wages explosion that the coalition warned of when they were first elected, Australia has the opposite problem.

For working people to be able to fairly share in this nation's prosperity, they need power. It's not power for the sake of power but the ability to influence what sort of workplaces we have and what sort of society we have. Most people on salary or wages don't have much in the way of wealth. Some own a home—or, more likely, have a mortgage. For many, house prices put home ownership just out of reach. So their power cannot and does not come from money. It comes from the value that they provide through working. It comes from the laws passed by governments that those workers contribute to electing and that the institutions created. That makes the right to strike important. It also makes our system of conciliation and arbitration important—to avoid situations where people actually exercise their right to strike by empowering them in other ways.

Conciliation and arbitration of industrial disputes is an idiosyncratically Australian approach to settling disputes. Writing in 1916, the then president of the Commonwealth Court of Conciliation and Arbitration, HB Higgins, said:

… the process of conciliation with arbitration in the background is substituted for the rude and barbarous processes of strike and lockout. Reason is to displace force; the might of the State is to enforce peace between industrial combatants as well as between other combatants; and all in the interests of the public.

But, in recent times, and particularly since WorkChoices, access to conciliation and arbitration has been limited.

Without access to conciliation and arbitration, then of course the right to strike becomes more important. I don't say this to imply there is no role for collective bargaining. On the contrary, we've had informal collective bargaining in this country throughout the history of the Federation—albeit, it was largely unregulated and informal until the 1993 Brereton reforms.

In the same article that I just mentioned, HB Higgins said—pretty dryly, actually—it was surprising how often the possibility of arbitration led participants to make friendly collective agreements rather than press for an award. Even after collective bargaining became central to wage setting in Australia after 1993, conciliation and arbitration remained important features of our system, but, as I said, access became more limited under the conservatives' WorkChoices. The erosion of access to conciliation and arbitration of industrial disputes in this country has contributed to the erosion of working people's power.

With less access to conciliation, the thing that was there to avoid people having to use their right to strike is not there anymore—or it's not there to the same extent—so of course people have less recourse to public institutions when they're not getting a fair go than they had when conciliation and arbitration were more readily available. That arguably makes the right to strike more important than it has been since Federation. In a 2008 paper for the Parliamentary Library, Jane Romeyn wrote:

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 …

She notes that Paul Weiler has argued that 'banning strikes would effectively end collective bargaining'. She also notes that another academic, Professor Antoine Jacobs, has argued that 'in the absence of a right to strike collective bargaining would amount to collective begging'.

Of course, WorkChoices also saw a range of substantial impediments being introduced in relation to the right to strike. It wasn't just conciliation and arbitration that were substantially eroded under WorkChoices; the right to strike also came under substantial attack, as it also had in the preceding Building and Construction Industry Improvement Act 2005, which had outright prohibited almost all industrial action in the building and construction industries. In her paper, Jane Romeyn wrote:

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.

This bill, which seeks to further curtail the right to strike in Australia, continues the conservatives' history of undermining the right to strike.

It is worth noting the history of the secondary boycott provisions in trade practices law in Australia. As you'd be aware, it was the Whitlam government that introduced the modern Trade Practices Act in 1974, a landmark piece of legislation that introduced genuine competition policy into this nation. Just that piece of legislation alone made a massive contribution to improvements in our gross domestic product. Shortly thereafter, in 1977, the year I was born, the Fraser government introduced section 45D, the secondary boycotts provision, into the Trade Practices Act. They did that to directly impact on unions' ability to strike; that was the purpose of the introduction of section 45D.

It was the then member of the Fraser government, John Howard, who introduced section 45D and, later, 45E, which explicitly referred to unions, into the Trade Practices Act. They were targeted. The provision which referred to agreements with unions, section 45E, was introduced in 1980. Then, in 1984, once they had been elected, the Hawke government attempted to repeal those provisions—sections 45D and 45E—but they were defeated in the Senate. The attempt to repeal was based on the, I think, quite clear fact that these are provisions that are, as I said earlier, inherently industrial in nature. They don't belong in competition laws; they belong in industrial relations laws.

Further attempts to repeal were not successful, but, in 1993, you'll remember that the then minister, Laurie Brereton, introduced a suite of reforms into workplace relations laws in this country.

There had been criticism by the ILO in relation to our industrial laws and in relation to the secondary boycott provisions in the then Trade Practices Act. You saw, through the 1993 reforms, for the first time a positive right to strike in Australia. There had been strikes in Australia but there was, for the first time, what was called protected action in the industrial relations legislation.

But, relevantly for this bill, that was the year in which the Keating government was able to repeal the secondary boycott provisions from the Trade Practices Act through modifying section 45D and deleting section 45E. The amendment was to ensure that the Trade Practices Act provision was aimed at the purpose of the Trade Practices Act, which was to deal with competition and to promote competition. That provision dealt with situations where there had been a substantial lessening of competition, and there was a limitation of the provision so that it effectively applied only to non-industrial secondary boycotts. But of course in 1996, when we had a change of government again, the Howard government moved the secondary boycotts provisions from the industrial relations laws back into the trade practices legislation. Why? So that a more onerous obligation could be imposed, to better prevent secondary boycotts, or, in other words, to better erode Australians' right to strike.

Mr Deputy Speaker, I have a range of concerns about this attempt to erode Australians' right to strike, as I'm sure you appreciate from the comments that I've made. One of the particular ways in which this legislation will seek to make it harder for people to engage in their right to strike is by imposing massive penalties on secondary boycotts. The legislation already proscribes secondary boycotts. This will introduce massive penalties. It will take the penalties from $750,000 to $10 million, or, if the amount that's three times the total value of the benefits obtained from the secondary boycott is greater than that, then that greater amount, or, if the court cannot determine the total value of these benefits, 10 per cent of the annual turnover of the corporation for the 12 months leading up to when the secondary boycott occurred. It's an attempt to crack down on sympathy strikes. It's an attempt to proscribe sympathy strikes, or to make it even harder to exercise your right to strike in Australia.

We have a right to strike. We're a signatory to and we've ratified the International Covenant on Economic, Social and Cultural Rights, which expressly recognises the right to strike, at article 8. That's been in force in Australia since 1976. As the former president of the Industrial Relations Commission Justice Giudice has acknowledged, the High Court found, in the Victoria v the Commonwealth case, following the 1993 legislation, that does give rise to an obligation for there to be a right to strike provided for in Australia.

We're also party to two International Labour Organization conventions that give rise to a right to strike. They are the 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. The Committee on Freedom of Association and the committee of experts from the ILO have repeatedly found that these instruments give rise to a right to strike. As I said earlier, the ILO has been critical, over and over again, of Australian restrictions on the right to strike included in the Workplace Relations Act, in the building and construction legislation and in the trade practices legislation. It has been specifically and expressly quite concerned about our secondary boycott prohibitions in this country. The committee of experts has expressed concern that those provisions rendered unlawful a wide range of boycott activity and most, if not all, sympathy action.

Mr Wallace interjecting—

Ms BUTLER:  I hear the member for Fisher saying that it's a good thing too. It's really indicative of the view of members opposite, who don't support the right to strike and are happy with the low-wage paradigm that we're now living in. I think it is worth acknowledging that we've had an international body, which is the body that oversees conventions to which we are a signatory, criticising us repeatedly from 1989 right through until at least 2014, for this failure to protect the right to strike, criticising us for this specific provision, the secondary boycott provision. And members opposite say, 'A good thing too!' They're happy for people to be deprived of their power, but I'm not happy for that. I think that it is very, very disappointing, and, quite frankly, flouting our international obligations, that this government is now seeking to impose $10 million in penalties on sympathy strikes in a further blatant and naked attempt to attack unionism in this country.

This bill, to the extent that it seeks to increase the practical impediments to Australians exercising their right to strike, is not just disappointing; it's dangerous. The ultimate consequence of reducing working people's power is the reduction in pay and conditions that we're already experiencing. I'm sure you remember that I quoted earlier the idea that, without your rights, without your empowerment, without institutions, without regulation and without rights to withdraw your labour, it's not collective bargaining but collective begging. There is a real problem with bargaining in this country when people don't get wage rises for years and when wages go backwards compared to consumer prices. We have to come to terms with this. It's not just a problem for the households; it's a problem for the economy. It hits consumption, which slows down GDP growth, and—possibly more saliently for this place—it affects the income tax take and therefore the revenue that the Treasurer has to deal with when it comes to seeking to balance the budget. So slow wages growth is a problem, and dealing with that problem needs to come to terms with the fact that collective bargaining needs to work. It needs to work, and wage fixing in this country clearly needs improvement. So instead of doing what it should be doing and focusing on that, it's regrettable that the government is trying to crack down on strikes and to reduce working people's power. Of course when that happens, when you reduce working people's power and slow down wages growth or even have wages going backwards, that increases the inequality that we face in this country. It feeds into greater economic inequality. More importantly, it feeds into the sense that the system is rigged against you. When you can't get a fair go at work, when you don't have any power in the workplace, it feeds into the sense that the system is rigged against you, and that's not just bad for our workplaces, our economic rights, our wages and our salaries; it's bad for our democracy and civic engagement. Because if people think the whole show is rigged, then they're at risk of giving up, and we shouldn't allow that to happen.

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