The legal noose tightens: NSW Rail union banned from striking

Your industrial action will be effective. Therefore, it’s banned.

That’s the message from the Fair Work Commission after last week ordering thousands of NSW rail workers to suspend all industrial action.

Since the order, management at Sydney Trains has been phoning workers to ask about their availability for overtime. Those refusing to do the colossal overtime needed to keep the rail system functioning are being told they may be viewed as taking “unprotected industrial action”.

This is how little we have left of the right to strike in Australia. And the NSW rail story is just the tip of the iceberg.

Rail workers in New South Wales had commenced overtime bans, and were due to strike on Monday 29 January, in pursuit of a 6 percent annual wage rise and better conditions. The Rail Tram and Bus Union had jumped through each hoop that workers and unions must clear before taking legally protected industrial action: they had waited for their previous enterprise agreement to expire, bargained “in good faith”, voted overwhelmingly for industrial action and given much more than the legally required three days notice.

But on the Friday before the strike, after an application by the New South Wales government, Fair Work’s senior deputy president Jonathan Hamberger found that the industrial action would “endanger the welfare of a part of the population” who rely on trains, and “threatens to cause significant damage to the economy of Sydney”. For both reasons, Hamberger ordered a six-week suspension.

This is far from the first ruling along these lines. In 2013, the industrial tribunal ruled that withholding student results, one of the main industrial tactics of the National Tertiary Education Union, threatened to endanger the welfare and health of students at Monash University. Despite students’ ability to apply for exemptions from the ban (and the absence of a single student saying their welfare or health had been affected!) a full bench of commissioners banned the industrial action.

Similar orders prohibited nurses in Victorian public hospitals from applying bans in 2011 and outlawed Ausgrid electricity line workers in New South Wales from holding a four hour stopwork in 2015.

Some unions might decide to “box clever” in these circumstances, perhaps using bans that cause grief to management but cause little disruption to operations. Even when this is possible, however, the approach has considerable dangers – as airline unions discovered in their battle with Qantas in 2011. In that case, unions announced short strikes and service disruptions, often calling them off at the last moment. This caused minimal actual disruption, but had a big impact on Qantas’ forward bookings.

The Achilles heel of any industrial strategy based on partial bans is that it leaves the initiative to management. In October 2011, Qantas called the unions’ bluff and dramatically escalated the dispute, locking out its entire workforce. This triggered enough “economic damage” to force arbitration – with the help of the federal Labor government – in which the unions won nothing.

There’s the option of proceeding with action despite a ban. Many of the more militant unions, including the CFMEU, the MUA and the NUW, have used this tactic effectively in recent years. Often, it is the only option left for a union to avoid industrial irrelevance.

The fines can be astronomical. Last month, the Federal Court found that the CFMEU construction division had caused a work stoppage at a building site at Footscray railway station in Melbourne, which delayed a concrete pour, according to judge Richard Tracey, by “about 10 minutes”. He imposed fines totalling $242,000.

Yes, you read that right: just shy of a quarter of a million dollars for a stoppage of “about” 10 minutes. Companies can kill a worker, or leave them crippled for life, and be fined much less.

Following last month’s spectacular, and effective, 18-day picket at Melbourne’s Webb Dock container terminal over the sacking of a union delegate, the MUA is being pursued by the terminal operators for $8.2 million damages – with a more speculative $100 million dollar claim for loss of future earnings and “reputational damage”.

Refusing to pay such fines, and backing this refusal with a vigorous industrial campaign across the union movement, is the defiant approach we’ll need to make these laws unworkable.

On the other hand, a union might avoid the possibility of fines by avoiding taking meaningful industrial action and instead use social media or other tactics to shame a company. In the viciously anti-union legal environment of modern Australia, even this pitifully weak approach is not without risk.

Murdoch University in Perth has terminated the collective agreement covering 3,500 workers. This leaves the university free to reduce wages by up to 39 percent from 26 March this year. Not only that: just before Christmas, the Federal Court permitted Murdoch management to pursue the NTEU and its officers for unlawful “coercion”.

That is, “activities such as Facebook posts, tweets, emails, posters, website posts and two protests” (in the words of the learned judge). The “coercion” action will be added to Murdoch’s other legal case for financial damages supposedly arising from this low key union activity. This action targets the NTEU and its Western Australian secretary Gabe Gooding (named as an “accessory” to this supposed crime).

So this is where we are. Anything from crippling industrial action through to a low key social media campaign might now open the possibility of a substantial damages claim. And the more effective our actions are, the harder we’ll be hit.

The Sydney Trains decision has sparked justifiable outrage throughout the union movement. The whole point of a strike, after all, is to be disruptive. Often, important conditions have been won by groups of workers (such as wharfies, coal miners, workers in power stations, and transport and logistics workers) whose industrial action has more impact because of flow on effects beyond their immediate employer – much like the Sydney rail workers. Now, that very industrial strength is an obstacle to taking legally protected industrial action.

The great disputes of history, where workers won new conditions, would be illegal under Australia’s current legal regime. The wave of strikes by construction workers in the boom of the 1850s that won the 8-hour day in Sydney and Melbourne (the first such victory for any group of workers on earth); the strikes of the 1880s that spread the 8-hour day and decent conditions across every industry; the eight-week strike of 3,000 Broken Hill miners during World War One that won the 44-hour week, and the strikes in Sydney’s newspaper industry in 1944 that won the 40-hour week; the three-week strike of New South Wales construction workers in 1971 that won workers’ compensation; the 51-day mass strike of Victorian nurses in 1986 that led to nurse-patient ratios (again, a world first): all of these would be illegal under the Fair Work Act.

The same applies to the smaller disputes that sustained militancy between major strikes, that enforced collective agreements, that protected victimised shop stewards or showed solidarity with other workers in Australia or around the world – all of these strikes are now strictly forbidden.

The overwhelming response of the labour movement to the Sydney rail decision has been to reach for the twitter feed, demand ​we #changetherules and plan for the next federal election. This is far from adequate. ​We want the rules changed. But relying on Labor to do this leaves us hostage to fortune.

Labor has released little detail on any reforms it will introduce, if it is eventually elected. (And if it can find the political will and can coax the laws through the Senate.) While a higher legal threshold for employers to terminate an enterprise agreement, tighter controls on sham agreements voted up by only a handful of workers, the registration of labour hire providers and so on would be welcome reforms, none of Labor’s commitments relate to the most important right of all – the right to strike.

And let’s be clear: these #brokenrules are Labor’s laws. As Tom Bramble explains in his important new article in Marxist Left Review, it’s often (and conveniently) forgotten how many of the industrial laws that shackle Australia’s unions are Labor creations. This includes the torturously narrow path to legally “protected” industrial action and the ability to outlaw such action if it threatens economic damage or endangers the welfare “of the population or of part of it”.

The law the Fair Work Commission applied to strike down the rail workers’ industrial action was part of the Keating government’s industrial relations changes in the early 1990s, and has survived every rewrite of the laws since then – by both Liberal and Labor governments.

The definition of “industrial action” in the Fair Work Act, passed by Labor in 2009, includes “the performance of work by an employee in a manner different from that in which it is customarily performed”. So if a worker decides, after years of doing overtime to keep Sydney’s rail system limping along, that s/he would rather spend time with family, management can claim this to be “unprotected industrial action”.

There’s a much better option available than relying on Labor to roll back anti-strike laws: mass defiance of those laws to render them a dead letter. The explosion of industrial action in Australia in the late 1960s and early 1970s – and in particular the rolling, nation-wide general strike in May 1969 that freed union leader Clarrie O’Shea – punched a hole in the anti-union laws of that time.

After the O’Shea dispute, bosses and governments knew that, while they could use legal action to fine unions, the result would often be an even bigger industrial dispute (and, ​often, an anonymous ruling class donor having to pay the fines to secure industrial peace). It’s worth remembering that this crucial space for industrial action, much greater than any mere legal reform, was won by workers taking action during a decades-long period of Liberal rule.

Getting back to that situation is no simple exercise. We’d have to start with the recognition that Australia’s industrial laws, draconian though they are, aren’t the underlying cause of the malaise in the union movement. The strategy of class collaboration, exemplified in the infamous Prices and Income Accord of the 1980s, first dramatically cut the rate of industrial action.

It’s usually not the laws so much as the political and industrial timidity of our established union leaderships that hinder serious organising efforts. The ruling class, along with its judges, commissioners and other hirelings, has been emboldened by our side’s retreat from militant class struggle. Years and decades of accepting the limits, paying every fine, “boxing clever” and hoping for Labor to save us has led to the appalling situation that we’re now in.

The question for our movement can’t be whether to defy the unjust laws strangling our unions. How best to campaign for, and organise, the mass defiance we need to break apart these laws – and how to revive the basic organising necessary to reach this point – is the vital question for our movement.

----------

Tom Bramble’s article “Our unions in crisis: How did it come to this?” is just out in Marxist Left Review no. 15. Order your copy from www.marxistleftreview.org, or from your local Socialist Alternative branch.

Jerome Small will be speaking on “A socialist strategy for Australia’s trade unions”, part of the Organising Workers stream at the Marxism 2018 conference in Melbourne over Easter. www.Marxismconference.org.