As bargaining gets under way for a new Catholic systemic enterprise agreement covering nearly 20,000 members in over 600 schools, IEU Industrial Officer Michael Wright explains the process of taking industrial action.
In Australia, when workers in education or any other sector have wanted to reinforce a claim for increased wages or manageable workloads or reasonable hours or other conditions, they’ve taken industrial action as a way of exercising their collective power to focus their employer’s attention on their needs.
Without the capacity to take industrial action, employees as a group have poor prospects of changing a belligerent employer’s stance in negotiations.
History: Arbitration and awards
Up until the 1990s, industrial action, while technically unlawful, was used by groups of employees who faced an unreasonable employer – either in the bargaining process or in how their workplaces operate.
Of equal importance, industrial tribunals at both state and federal level could, upon application by unions, make enforceable awards through arbitration of the parties’ claims. Arbitration governed wages and conditions across industries and workplaces, thereby reducing the need to pressure employers to agree through industrial action.
This system of federal and state arbitrated awards provided a means of achieving proper wages and conditions for Australian workers. The series of work value cases that the IEU and other unions ran between about 1950 and the mid-1990s are testament to that.
Until the 1990s, industrial action was not the only means of winning better wages and conditions. Empirical data, evidence of work performed and persuasive arguments before an industrial tribunal also facilitated better wages and conditions. Because of the award system, workers did not necessarily need to strike for better wages and conditions or to resolve other workplace disputes.
WorkChoices: Your rights restricted
This all started to change in the 1990s, culminating in the Workplace Relations (WorkChoices) Act 2005 (known as the Work Choices regime under then PM John Howard).
The new laws virtually abolished the arbitrated award system as a mechanism for increasing wages, conditions and dignity in the workplace.
WorkChoices also narrowed the concept of industrial action to “protected” industrial action. For industrial action to be protected, it must meet a narrow set of legal requirements. Taking action that is not “protected” leaves both unions and members exposed to fines and claims for damages. This legislative framework remains effectively unchanged today.
The union movement has campaigned for change to this restrictive regime, and the International Labour Organisation (ILO) has long been critical of Australia’s limited right to take industrial action for not conforming with basic ILO conventions.
In 2021, ACTU Secretary Sally McManus decried the draconian protected action process. “It’s like being tied to a chair and asked to stand up,” she said.
“We can only take lawful industrial action in a very, very narrow timeframe, according to complicated laws, with motions and votes rubber stamped. It’s like you’ve got to wait until Venus is in this part of the sky and the moon’s rising at exactly this point, then you can do it.”
The Bishop of Parramatta, the Most Reverend Vincent Long Van Nguyen, has said: “Tight restrictions on industrial action, particularly during wage negotiations, further reduces the collective power of workers.” The union shares this concern.
The Secretary of the South Coast Labour Council, Arthur Rorris, addressed the right to strike at the IEU’s Activists Conference in 2021. “Simply having the right to withdraw your labour does not mean you’re going to withdraw your labour at every opportunity,” Rorris said.
“In fact, we often find the opposite: if the employer knows you can withdraw your labour, they’re more likely to come to the table and negotiate because they know you’ve got a countervailing sanction on them.”