The law and your right to withdraw your labour

New ACTU Secretary Sally McManus’ interview on the 7.30 Report provoked outrage over her preparedness to break the law in pursuing workers’ objectives.

Numerous articles were written about the “legality” of slavery, apartheid, denying women the vote, racial discrimination and more until laws were broken. A Queensland example of civil disobedience was the opposition to the ban on street marches and protests in Queensland led by unions, churches and students when Joh Bjelke-Petersen was Premier.

The real story is the parlous state (in legal terms) of the right to strike in Australia. On the right to strike, Australia is in breach of international covenants that it freely signed guaranteeing workers’ rights. It is regularly criticised by the International Labour Organisation (ILO) – the tripartite international body founded in 1919 to monitor working standards – for its failure to guarantee some fundamental rights.

Most Australians would think of their country as a “workers’ paradise”. Indeed, there are some remarkable achievements – the introduction of paid family and domestic violence leave by the Queensland Government is a recent addition. But the view is not so rosy on the means to achieve further improvements, including the right to take industrial action.

Fair Work Act?

Queensland teachers are employed under state industrial legislation. Most employees in Australia are covered by the federal Fair Work Act.

The Fair Work Act allows protected industrial action only during a bargaining period for a new enterprise bargaining agreement, only after a ballot of members, only for industrial action that is specified in the ballot and only for a limited period of time.

The concept of industrial action is so broad that international airline pilots wearing a different tie and making an announcement inflight is industrial action so diabolical as to lead to the termination of negotiations by the Fair Work Commission. Wearing a badge constitutes industrial action for private school teachers, requiring a ballot and notice to the employer before the badge can be worn.

When an enterprise bargaining agreement is in force, industrial action is unlawful.
Irrespective of whether or not you agree with their individual actions, the bulk of the offences for which the CFMEU is prosecuted are for taking industrial action when an EB agreement is in place, or for going into worksites to talk to members (right of entry).

The so called Fair Work Act makes much strike action unlawful – in breach of international covenants to which Australia is a party. In spite of its name, the legislation introduced by the Rudd government was very much a compromise piece of legislation, not “winner takes all” for employees.

A Queensland perspective

For Queensland teachers, any action taken while an enterprise bargaining agreement is in place is unprotected action rather than unlawful. In practice, the Industrial Relations Commission (IRC) frowns on industrial action as a general rule and makes orders (with legal consequences) against action.

Consider the circumstances where we have taken action or voted to take action.

  • TAFE teachers stopped work for two hours (in spite of IRC orders) two days before the last state election, after two years of pay freeze and fending off demands for wholesale reduction in conditions by the Newman government.
  • After signing an agreement with Queensland teachers in September 2012 that included a clause about “no further claims”, the Newman government announced proposals for “short-term performance based contracts” for principals and deputy principals, performance pay for teachers (Great Teachers = Great Results) and changed industrial legislation to invalidate clauses in the agreement it had signed. Queensland teachers twice overwhelmingly voted to take industrial action if the government proceeded.
  • Every time members in a school carry a resolution to refuse instruction to a student because of the student’s behaviour or a lack of resources necessary for instruction or student safety.
  • Every time members in a school carry a resolution to boycott buildings until they are improved to a fit, safe standard etc.

Breaking the law

Beyond this, the Union did deliberately break the law during the time of the Newman government. The government carried legislation to require unions to ballot members through the Electoral Commission any time they wanted to spend more than $10,000 for so-called “political expenditure” – a term so broad that it included virtually every public action by unions against the government as an employer.

The government eventually admitted over a year later, just before a case was considered by the High Court, that its legislation was unconstitutional. It amended the legislation in the middle of the night, and paid the costs of the QTU and the nurses and police unions who were the test cases for the High Court.

In similar circumstances, we would do the same again.

The rule of law

The rule of law is a fundamental of democracy. Compliance with bad law is the basis of tyranny. Those two statements are not alternatives, not the poles of a dichotomy. Each is true. They co-exist. How then do we act?

Law has its limitations. Law is based on the current words and on precedent, on the adjudications of the past. I am not a lawyer but I know that, in each Teachersand the Law seminar the QTU runs, there is inevitably a situation that cannot be resolved by the law as it stands, but can be by industrial action and the withdrawal of labour. Behaviour management issues are a common example.

There is a difference between law and justice. My experience of industrial tribunals over many years is that they are more about peace – the prevention of industrial disputes – than justice – their settlement. That view has only been reinforced as tribunals have become more legalistic, with an added burden of increasing cost. I believe that unions stand for justice, not for its out-dated approximation in the law.

No matter what the law says at any point in time, the right of workers to withdraw their labour is a fundamental human right, acknowledged by our nation in international covenants but not in our own law. It is a case that we argued, unsuccessfully, in the review of Queensland industrial legislation, as I have mentioned before in the Queensland Teachers’ Journal.

We only have the rights that we are prepared to exercise. The right to strike is one of them. It is not one that we have exercised idly or thoughtlessly or without serious cause. But if exercising it means breaking bad law, so we should.

Graham Moloney                                                                                                             General Secretary

Queensland Teachers' Journal, Vol 122 No 3, 14 April 2017, p22