OPINION□ AUSTRALIAN LABOURLAW The right to strike in Australia AronNeilson looks at the developmentof the right to strike inAustralia ARON NEILSON Aron Neilson Isadual qualified Solicitor In both Australia and England and Iscurrently engaged asaLegal Officer for UNISON In the UK. Despite regime, abolition the there of widespread remain the former large celebration swathes 'Workchoices' at of the the abolition of the former'Workchoices' regime, thereremainlargeswathesofthe new law whichrepresent significant challenges fortheeffective representation ofworking peopleinAustralia . One oftheareasinwhichunions continue tofacechallenges isinregards toorganisedindustrial action. In orderto understand thecurrent restrictions on industrial actionwe need to consider a short historyof the rightto strike in Australia. Historically therehas been no legallyprotected right to strike. A comment byMauriceKayLJin a recent English case that'theright to strike has neverbeen muchmorethana sloganor legal metaphor'could equally be applied in the Australian context. Insteadofprotecting theright tostrike, Australian legislation hasoffered immunitiesto unionsfrom liability in tort whenthey engage in industrial actionin certainnarrowly defined circumstances. Sincethefirst immunities were introduced in 1993,thelaw has consistently been tightened so thatAustralian unionscan onlyexercisea 'right to strike' freefrom bothciviland in some cases criminal sanctionin verylimited circumstances. These restraints were at thereworstunderthe 'Workchoices' regime undertheformer conservativeGovernment , and whilst some tinkering has been done aroundtheedges withthenew Fair WorkAct,therestrictions imposedon a union's ability to access industrial actioncan be quite debilitating. The new system So howdoes a uniontakeindustrial actionunder thenew system? Well,in identical fashion to the old system, industrial actionmayonlytakeplace inpursuit ofa collective bargaining agreement. In orderto demonstrate thatitis engagingin collectivebargaining , the unionmustsatisfy a tribunalofa number ofthings beforea strike will be legallyprotected (if not legallysanctioned). The unionmustsatisfy thetribunal thatitis genuinely bargaining withan employer inan attempt toreachagreement. To be considered tobe 'genuinely ' bargaining, a unionmust onlybe bargaining for contentwhich is permitted by law amongst other things. The waythelaw restricts agreement content is bymaintaining thatan agreement can onlycontain itemspertaining to the relationship of an employerand employee.This is a quaintand oftenmisunderstood notionin Australian labour law. It is a legal maximwhich has stopped unionsfrom bargaining forconditions likesalary sacrifice and restrictions on theuse of contractors . Infairness tothenewlaw,thecurrent Labor Government has allowed unionsto bargainfor itemsthatalso pertain to theunion- employer relationship. Forinstance uniondelegatetraining maynow be includedin a proposedcollective agreement whereasbefore itwas questionable as to whether it offended the employer-employee relationship test.Despitethismerited relaxation on agreement content, thefact remains that there are still restrictions imposed on the content whichan agreement maycontain.Forexample, an agreement stillcannotcontainright of entry provisions better thanthoseprovided forbythe Act.Furthermore, an agreement cannotcontain provisionsentitling a union to take industrial actionduring theterm oftheAgreement. Unions mustmovewithcautioninattempting tobargain withan employer to ensurethattheunionsproposed agreement contentdoes not offendill defined and quaintlegalmaxims whichtribunals andcourts often applyinan inconsistent fashion. Iftheyare judgedto be pursuing such itemsa union can be prevented fromseekingto take industrial actioninsupport oftheagreement. Secondly theunionmustnotengageinpattern bargaining. The restriction imposedon pattern bargaining is ofcoursedesignedto stopunions attempting to negotiatetermsand conditions acrossindustry andusingindustrial action tosupportthere claimsacrossthat industry. Therestrictionon pattern bargaining limits agreement makingto individual enterprises and of coursediscountsthe notionthatworkers in forinstance, themetalindustry, might wishtosecurecommon and terms and conditions acrosstheir industry. Thirdly a unionmustensurethatitdoes not have in place withtheemployer thatit is bargaining witha current enterprise agreement within itsnominalterm.Enterprise Agreements are termlimited in Australia and a unionis specificallyprevented from taking anyform ofindustrial actionwhilst theAgreement is within itsterm. Ifa Unionissatisfied that ithasnotengagedin patternbargaining, or sought to bargainfor unlawfulcontent, can prove thatany existing agreement has expired, and believesithas genuinely tried toreachagreement withtheemployer ,thenitmayapplytothenewindustrial arbitral bodyFairWork Australia fora secret ballotorder. Balloting A secretballotorder, ifmade,leads to a secret ballottaking place ofall theemployees involved in thebargaining uniton whether theywishto engageinindustrial action.Mandatory secret ballotswerefirst introduced bytheformer conservativeGovernment who often claimedthatunion members wereintimidated byunionleadersinto taking industrial action.Sincetheintroduction of ballots,union membershave overwhelmingly supported their unionscallsforindustrial action INTERNATIONAL union rights Page 6 Volume 16Issue 4 2009 and veryfew,ifany,ballotshave been lostby unions.Despitethisclearrepudiation oftheconservative mantra thatunionsintimidated membersintotaking industrial action, thenewlawhas retained thesecret ballotarrangement. Inseeking a ballotordertheunionmustspecify theaction thatitproposesto takeinorderfortheemployees to authoriseit. This is quite a restrictive requirement because a union is limited to the specific actionwhichis proposedin theballot questionand cannotvaryitsactionto suitthe changing circumstancesof the bargaining process.Ifa unionwantstotakea different form ofactionthat that whichwas proposedinitsballotorderapplication itneeds to go through the entire processfrom scratch. Ifa unionobtains approvalbyitsmembers for theindustrial action, thentheunionmayengage in thatspecific actionon theprovision ofthree daysnotice totheemployer (orsuchlonger period thatthe tribunal deems appropriate). The...