Striking distance

The new industrial relations regime changes the requirements about who can strike and how they can go about it. But a labour law expert says this has long been a complicated matter in Australia.

A day off work is a prized thing for many workers – except when that time away from the office, workshop or factory is a power play in a struggle to gain better working conditions. During strike action, time off becomes a tense waiting game, often involving a vociferous picket line and frayed tempers. This year, the Federal Government ushered in sweeping new labour laws under its Work Choices legislation, which, among other things, has changed the rules about who can strike, how they go about it, and what happens to them if they fail to follow the correct procedures. While unions cry foul, one expert says the process of taking industrial action in Australia has had a long and chequered history. 

“Strikes are a big part of Australian history, and a big part of why we ended up with a conciliation and arbitration power in the constitution,” McCrystal says. “In the 1890s, there was a series of strikes along the eastern seaboard involving graziers and maritime workers. These were some of the earliest industrial disputes to cross multiple colonies. They were extensive, crippling, and went on for a very long time.”

McCrystal says these strikes encouraged the politicians drafting the constitution to include conciliation and arbitration powers for the Federal Government in the case of industrial disputes affecting more than one state. Another outcome was that following a crushing defeat, the union movement was much more prepared to seek a political solution to the labour problem than elsewhere in the world. Ultimately, this contributed to the development of regulations for unions, and the formation of the Australian Labor Party.

The Federal Government’s power to regulate strike action revolved around its constitutional powers of conciliation and arbitration up until the Industrial Relations Reform Act 1993 (Cwlth) was passed. Prior to this, the conciliation and arbitration power had inhibited the ability for Parliament to pass prescriptive legislation about what people could and couldn’t do around strikes, because this needed to come within the ambit of specific disputes.

“Strikes under that system were problematic. From 1904 to 1930 they were illegal. They continued unabated at the time, but were regarded as criminal, on the theoretical basis that unions who registered in the industrial relations system agreed to submit to the norms of that system, where they could get a conciliated and arbitrated outcome, and therefore shouldn’t need to take strike action,” McCrystal explains. After 1930 strikes remained unlawful in common law and subject to sanctions under the federal legislation. However, strike action remained a constant presence in the Australian industrial landscape.

“In practice, it means that unions took strike action under that system in order to show an employer that they were serious, so that it increased their bargaining power.”

Strikes of varying size and impact continued throughout the 20th century, with the unions and employers involved settling in the Australian Industrial Relations Commission, which set centralised awards for whole groups of employees. But in 1989, a group of workers went on strike demanding a pay rise above their awards. The airline pilots’ dispute brought domestic air travel in Australia into disarray, but it also was a contributing factor to the right to strike being enshrined in legislation in the Industrial Relations Reform Act.

“What led to the right to strike in 1993 was the fact that if you’re going to have collective bargaining above the award system, parties can’t participate in that without some way of bringing pressure to bear on the other party,” McCrystal explains.

In recognition of the need for balance in industrial disputes, and to overcome the fact that a centralised award system was unwieldy and economically constricting, the Keating government legislated for a right to strike. The problem of the lack of a prescriptive industrial relations power in the Constitution was overcome through the use of other federal powers including the corporations power and the external affairs power. The right to strike also removed the possibility that employees who decided to undertake a ‘protected’ strike could be sued by their employer, which had been the case prior to 1993. The right was maintained in the Workplace Relations Act 1996.

This year, the Work Choices legislation has introduced new requirements for employees contemplating a strike. McCrystal says two of the major changes include new conditions that must be met before strike action can be taken, and how the Industrial Relations Commission must treat those who take strike action without the proper authorisation.

“Under Work Choices, employees wanting to strike must go to the Australian Industrial Relations Commission (AIRC) and seek a ballot order. The commission will then order a secret ballot to be carried out by the Australian Electoral Commission.

“If the ballot is applied for by a union, the ballot will be on union members who will be subject to the agreement, and to go out on strike you’ll require an absolute majority. Unions will have to bear 20 per cent of the cost of the ballot.

“If you are non-unionised, you have to apply to the AIRC, and you need the support of a number of employees to do that. Then the ballot is for the entire workforce who will be subject to the agreement. You’ll need 50 per cent to vote, and 50 per cent to vote in favour, before strike action can be taken.

“The ballot provisions are very prohibitive. I think it will be virtually impossible for non-unionised workers in any kind of workplace to take strike action. You’ve got to motivate 50 per cent of your fellow workers, when you don’t have the money and resources of a union, to vote in the first place, let alone getting 50 per cent of them to vote in favour of going on strike. It will be difficult for unions too, imposing a significant strain on their coffers.”

McCrystal says Work Choices also requires the AIRC to order that any strike action taken by employees without the proper authorisation stop. These orders are then enforceable in the Federal Court. Previously, the AIRC had discretion in this matter. 

“The new legislation has introduced limitations about what you can strike about, when you can strike, and what kinds of agreements you can strike for. You’re restricted in access and you’re restricted in what you can ask for.

“There is this wonderful line by Paul Weiler, who said in 1980 that Canadian labour law had reduced its right to strike to its irreducible minimum. If you take it any further it’s gone. I think we have now reached Weiler’s irreducible minimum in Australia.”

McCrystal says it is possible that the new requirements around industrial action could be viewed as empowering for unions and employees, who must cross many hurdles to get to strike.

“British experience suggests that secret ballots have been a legitimising force, strengthening the trade unions positions at the bargaining table because they have evidence of willingness.

“In my view, it’s a very high price to pay, and it’s a very restrictive, interventionist way of achieving something in the name of deregulation. It’s saying that trade unions didn’t have their own internal democracy. We have the most highly regulated trade unions in the world. They are subject to significant regulation. They have good internal processes.”

While people digest the new requirements, it is uncertain whether picket lines will be crossed off the agenda for employees, or reinforced with a new legitimacy.


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ANU Reporter
Winter 2006