Right to withdraw labour is a human right

Earlier this month, Labor leader Kevin Rudd enunciated what amounts to a radical break with standing Labor policy. As we will shortly consider in more detail, the changes effectively challenged the right of Australian workers to strike: banning the withdrawal of labour in all but a small number of scenarios, and threatening with sanctions those workers who exercise what is really a fundamental human right.

Rudd’s shift of direction was announced only days before the coming ALP National Conference. The change of direction has been portrayed as a fait accompli: with no time for the expression of dissent, and with unionists and Labor members under pressure to keep silent or otherwise voice their support, lest they undermine the position of the leader.

All in all, the episode gives one the impression that Rudd has internalised the notion that business will only tolerate Labor governments which accept a scenario of “one step forwards, two steps back” when it comes to worker’s rights.

What is more, this reality, which undermines democracy to its very core, must remain unspoken lest the ALP risk further alienation of the powerful business lobby. Labor is always called upon to compromise: but always to the Right, and never to the Left; always to accommodate the worst currents of authoritarianism and conservatism; and always to distance itself from the industrial wing which gave it birth.

It would be best, first, to consider the changes introduced by the Government, as many of these are now being supported by the Opposition Leader.

The government’s laws

As Chris White explains in the Journal of Australian Political Economy, Australia is currently experiencing the lowest level of industrial disputation seen in 45 years. And yet for the Conservatives there is a zealous ideological drive to push the labour movement into marginalisation, irrelevance and extinction. Current laws threaten unions with injunctions, fines, and “make unions civilly liable for damages under common law”.

Howard, however, has gone further, targeting building unions specifically, and threatening individual unionists with massive fines or jail for failing to implicate their workmates, taking strike action, or even for action as trivial as a brief stop-work meeting.

In addition, White lists a number of repressive laws introduced under WorkChoices that threaten worker’s fundamental rights:

• pattern bargaining strike action is made illegal;
• strike pay is banned - even where industrial action is made inevitable as a consequence of strident attacks by employers on worker’s rights, wages and conditions;
• compulsory secret ballots are made a legal condition for strike action;
• the AIRC and the relevant federal minister have unprecedented powers to declare strike action illegal. Union claims are illegal where they contain “prohibited content” such as requests for trade union training leave, or the acceptance of unfair dismissal provisions. Fines of $33,000 will apply to those seeking to claim “prohibited content”;
• strikes are outlawed during the life of an agreement; and
• strikes as a means of political protest are outlawed

These repressive provisions have formed the basis of Australia’s new industrial relations regime: a regime that flies in the face of our commitments to worker’s rights under the relevant ILO conventions.

Furthermore, the system of Australian Workplace Agreements (AWAs) which the Conservatives have promoted as a vehicle to replace collective bargaining, have almost exclusively provided “flexibility downwards”.

According to the Sydney Morning Herald, research that the Federal Government had been suppressing “reveal[s] that 45 per cent of Australian workplace agreements have stripped away all of the award conditions that the Federal Government promised would be ‘protected by law’ under WorkChoices”.

Again, according to the SMH: “The statistics, which the Government has been refusing to release for months, also show a third of the individual employment contracts lodged during the first six months of WorkChoices provided no wage rises during the life of the agreements.”

Most agreements stripped previously accepted conditions, including shift loadings (removed in 76 per cent of the agreements), annual leave loading (59 per cent), and declared public holidays (22.5 per cent). What is more, these laws were introduced without a mandate. The new and radical measures designed to outlaw, under almost all circumstances, the withdrawal of labour and criminalise the legitimate claims of unions in the process of collective bargaining, were introduced without first having been released as policy prior to the last election.

The response of the public has been overwhelming. According to a recent AC Nielson poll, only “24 per cent of [those surveyed] supported the legislation while 59 per cent opposed it”.

Kevin Rudd’s response to WorkChoices

So far some in the labour movement are still waiting for more detail on Rudd’s response to WorkChoices, and his agenda for the ALP platform: this only days from National Conference.

Rudd has made a number of points clear: clear enough to shatter any delusion that unionists and conference delegates should “hold their tongues” and adopt a “wait and see” approach. Despite record low levels of strike activity, and a labour movement that is shrinking further and further into submission and marginalisation, Rudd has emerged as something of a zealot on the issue, decrying trade union militancy:

"Industrial disputes are serious. They hurt workers, they hurt businesses, they can hurt families and communities, and they certainly hurt the economy … There can be no going back to the industrial culture of an earlier age."

Speaking to the National Press Club, Rudd has vowed to retain a substantial portion of the WorkChoices legislation. Strike pay, according to Rudd, ought to remain illegal. Secret ballots ought to be compulsory before any withdrawal of labour is legal. And if Rudd’s view prevails here, unfair dismissal laws still will not apply to millions of workers. Employers with less than 15 staff will still be able to sack employees for any reason if they have worked for the company for less than a year. For businesses with more than 15 people, workers will only be able to claim unfair dismissal if they have been there for at least six months.

Such a position makes a mockery of Labor’s former commitment to “rip up” the WorkChoices legislation, restoring unfair dismissal provisions, and retaining the right of workers to withdraw their labour regardless of the result of any secret ballot. If workers are not allowed to withdraw their labour, what are they other than slaves?

Pattern bargaining is also turning out to be an issue of great contention. Rudd has stated at the National Press Club that: “employees … will not be able to strike in support of an industry-wide agreement.”

This is of concern, because without industry-wide solidarity, the industrially weak will be isolated and victimised, and the conditions they are driven to accept may well flow on to the rest of any given industry as a “race to the bottom” follows.

And since Rudd has argued that strike action should only be allowable during the negotiation period for any enterprise agreement, this gives workers no recourse to withdraw their labour should employers act against their interests during the interim period.

In particular, this leaves no scope for strike action in defence of health and safety concerns; to remedy what workers may perceive as unfair dismissal; to negotiate redundancy agreements in instances of restructuring; or to alter the conditions of an agreement should circumstances change.

Furthermore, the lack of any right to strike action as a form of political protest makes actions such as the famous “Green Bans” of the 1970s, or the kind of general strike action taken recently by French unions against regressive labour “reform” literally criminal. This winds back basic human rights beyond what is tolerable for any nation, let alone a country such as Australia - which is a signatory to the relevant ILO conventions.

Several questions are also unanswered. How many protected conditions will be reintroduced in what Julia Gillard has claimed will be a “simplified Award system”? And to what extent will restrictions on trade union organisation be removed? In particular: will union organisers have their right of entry to workplaces restored?

That such issues are still in question is very troubling. Without the return of a more detailed system of Awards, protecting a range of minimum wages and conditions in any given industry, the industrially weak will stand to be marginalised, and driven to accept a “bare minimum” “safety net”.

Some trade union leaders have come out against Rudd’s proposals for the ALP Platform, but by and large the response from the ACTU and elsewhere has been resigned and muted. Victorian Electrical Trades Union Secretary, Dean Mighell was one who dared raise his head above the parapet:

"We will be putting it on the other unions: do not accept anti-union behaviour. The right to strike, secret ballots and abolition of the right to campaign for industry agreements are fundamental … We don't want Labor adopting silly IR policies just to be seen to distance themselves from the union movement. I think it is anti-union. To abolish industry-wide agreements is crazy."

Secretary of the Victorian Trades Hall Council, Brian Boyd and Australian Manufacturing Workers Union Secretary, Doug Cameron have also expressed concern. Cameron’s concern was swiftly rebuked by Rudd, however, with little in the way of resistance or response by the trade union leader. The Labor leader’s sharp, almost abusive response was intended to cow Cameron into submission: to force him into a corner where Rudd was effectively saying: “it’s either my credibility or yours”.

Boyd, also, while maintaining in-principle opposition to Rudd’s position, indicated he may be willing to hold his tongue to avoid a conflict.

Without leadership now, therefore, it appears Rudd’s position is likely to prevail with barely a whimper: with a pre-conference stitch-up reducing ALP internal democracy to a media stunt.

Notably, however, The Greens have provided a media release condemning the Labor leader’s position, quoting Bob Brown:

"There is now little difference between the ALP and Coalition on the right of workers to take industrial action. The Greens are committed to an unfettered, legal right to strike as a fundamental right of workers to promote and defend their economic and social interests.”

This raises another question. If the ALP will not stand up to be counted as the party of organised labour in this country, perhaps the ACTU would be better placed not “putting all its eggs in one basket”. Perhaps unions ought to inform members of the policies of other parties, such as The Greens, thus pressuring the ALP to be less equivocal in supporting its union base.

The author has been a member of the ALP for well over a decade now, but I am beyond the bankrupt philosophy: “my party right or wrong”. Rudd is riding high in the polls: he can afford resistance to his position at the ALP National Conference, and can adapt to meet any broader campaign for labour rights that might follow.

GetUp! would be an ideal vehicle for any campaign, and readers should write to the organisers of that body requesting a campaign to promote a more worker-friendly approach from all political parties.

The US-based group LabourStart has also expressed interest in organising an email campaign: if only they are formally approached by an Australian union or peak union body first. Ultimately, the ACTU should be aiming to move from the defensive and onto the front foot: campaigning for progressive reforms such as the introduction of Swedish-style wage earner funds. A campaign for labour rights could even take place within the broader context of a campaign for a Human Rights Act.

For once, then, Labor delegates need simply to stand up for what’s right, instead of remaining silent for the sake of “unity”. Let’s see a conference that’s a robust, engaging vehicle for debate and real democracy. And if a compromise is reached between Labor’s factions: an effort to reach “consensus”, for once let it be on the broader labour movement’s terms, rather than on the terms of the employer lobby and Rupert Murdoch.

Finally, let’s see an ongoing campaign for worker’s rights that’s more than an ALP electoral vehicle: a campaign that does not compromise on issues that go to the heart of fundamental human rights.