Academic journal article The Economic and Labour Relations Review : ELRR

Protected Industrial Action and Voluntary Collective Bargaining under the Fair Work Act 2009

Academic journal article The Economic and Labour Relations Review : ELRR

Protected Industrial Action and Voluntary Collective Bargaining under the Fair Work Act 2009

Article excerpt

Introduction

Over the past twenty years, there has been a shift in many industrialised economies away from the industrial relations compromises that marked the post-World War II period, in particular the recognition of trade unions as social partners in 'economic and social processes through various tripartite arrangements and schemes facilitating collective bargaining' (Sharard 1996: 1). This was noted by the Committee on the Application of Conventions and Recommendations (CEACR) of the International Labour Organization (ILO) in 1994 when it expressed concern at legislative trends giving precedence to individual rights over collective rights, and at structural changes used to undermine trade unions and fragment collective bargaining (ILO 1994: [236]). These changes occurred in Australia both during the later years of the Hawke-Keating Australian Labor Party (ALP) Governments and during the following eleven-years under the Howard Liberal Party-National Party Coalition Governments from 1996-2007. This shift towards individualism and the fragmentation of bargaining occurred in Australia during the transition from centralised fixation of employment conditions, through conciliation and arbitration processes, to the negotiation of wages and conditions through voluntary collective bargaining (see Cooper and Ellem 2008).

One component of this change in the federal regulation of industrial relations was the introduction of a limited 'right to strike' in federal industrial legislation in the form of protected industrial action in support of agreement making. The protected industrial action provisions, originally introduced through legislation in 1993, constitute the only context in which workers covered by the federal industrial relations system can lawfully exercise the 'right to strike'. Virtually all industrial action undertaken outside of that regime may be subject to some form of legal sanction arising either at common law (breach of contract, economic torts; see Ewing 1989) or under certain Statutes (boycott provisions in the Trade Practices Act 1974 (Cth), (1) sanctions under federal industrial legislation) (see McCrystal 2010, ch 6). Introduction of a right to strike constituted recognition by the then ALP Government that if employees were to be encouraged to engage in collective bargaining over the terms and conditions of their employment, then they had to be provided with a right to strike in support of those claims in order to have leverage in negotiations. However, this was not the only effect of the legislation. Instead, as Gordon Anderson (1997: 158) has argued, governments implementing 'new-right' labour market policies 'were not slow to appreciate that the most effective way of implementing [their policies of individualisation and enterprise focus] was to remove or restrict the rights of workers to strike'. Recognition of a legal right to strike served dual purposes: to give employees leverage in bargaining but also to control the nature and extent of that leverage, limiting the circumstances in which it could be brought to bear. The nature of the legislative regime implementing the right to strike in Australia shows that this is something that successive governments have understood.

This article will outline the protected industrial action provisions in the federal industrial relations system, beginning with their enactment in 1993 and moving through to the provisions as they were most recently enacted under the Fair Work Act 2009 (Cth) (FW Act). The discussion will begin by briefly outlining the obligation to respect the right to strike and to promote voluntary collective bargaining in international law. It will then examine the Australian legislative provisions, before reflecting on the degree to which the current ALP Government is committed to allowing industrial parties to pursue voluntary collective bargaining in order to determine their own industrial agendas. This commitment will be assessed by reference to a detailed discussion of multi-enterprise bargaining and the failure of the legislation to extend protection to industrial action taken in support of pattern bargaining and multi-enterprise agreements. …

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