From the General Secretary

Resistance not futile, just done differently

By Mary Franklyn General Secretary

In June’s issue of Western Teacher it was noted that there had been feedback from some members requesting “a need to better explain the impact of industrial laws that constrain union action in response to governments capping wages or even freezing salary increases.” While we all are disappointed that the state government continues to apply wage cap restraints to new public sector agreements, it is important to understand what methods are available to us to most effectively fight for our rights and entitlements. The average Australian is probably not aware to what extent current industrial legislation severely limits workers and unions to take industrial action. Industrial action is generally unlawful in Australia, and the circumstances in which industrial action can legally be engaged in are extremely limited. Even though in 1975 Australia ratified the United Nations’ International Covenant on Economic (FWO), Social and Cultural Rights of 1966 – which requires that governments ensure workers have a right to strike – ratification of the Convention alone does not mean that it has become part of Australian law. It is up to state and Commonwealth Parliaments to pass laws to give effect to the Convention. Although there is a limited right to take protected industrial action in the national employment system under the Commonwealth Fair Work Act 2009, there is no right to strike enshrined in Western Australia’s Industrial Relations Act 1979 (‘IR Act’). On application by an employer or the government, or at its own initiative, the Western Australian Industrial Relations Commission (WAIRC) may convene a compulsory conference in response to any industrial action or threat of industrial action. The WAIRC can then exercise very broad powers to deal with industrial action and can make orders to stop employees and unions from engaging in such action. Breaching these orders can result in prosecution in the courts and penalties being imposed on unions and employees. The WAIRC also has the power to deregister a union under section 73 of the IR Act. Conservative governments have threatened unions with deregistration as a consequence of engaging in industrial action. Industrial action often amounts to a breach of the employment contract or is otherwise unlawful at common law. Employers may sue for damages, seek injunctions, stand down or dismiss employees in such circumstances. Depending on the nature of the industrial action, participants may also be exposed to criminal prosecution. The International Labour Organisation has found many instances where industrial laws governing strike action have been in breach of Australia’s international obligation to protect the rights of workers on strike.

Despite signing up to international covenants designed to protect workers who take legitimate industrial action, state and Commonwealth governments have largely failed to legislate in order to give effect to their international treaty obligations. The effect is that workers continue to have very few rights or protections when taking industrial action. Arguably the main reason that employers and governments rarely use common law sanctions against workers is because of the risk involved in taking such action against a well-organised group of workers who are committed to supporting each other. In the absence of proper statutory protections, unions must be smart about industrial action to support progress to improvements in conditions. Unions must also look to political and community action to drive required changes. For our union – we pursue an agenda to improve and protect members’ conditions as well as the conditions for learning in all public schools and TAFE. We do this in constrained industrial legal framework with the additional problem of government wage freezing policies. We cannot succeed if we rely on the “olden days” or we segment our membership or aspire to self-interest. We have succeeded because we act collectively. As a collective we act in an informed, planned and strategic way and we keep our WA community with us.