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Australia's right to strike laws have been criticised for being overly restrictive and in breach of international law. Under Australian law, industrial action is generally unlawful, with workers only having limited rights to take protected industrial action without facing legal repercussions. The International Labour Organisation (ILO) has repeatedly stated that Australia's laws breach international labour standards by restricting the right to strike, which is recognised as a fundamental human right by the United Nations. The preconditions and legal hurdles required to carry out a lawful strike in Australia are numerous and have made it challenging for workers to advocate for better wages and conditions effectively. This has led to criticism from union leaders like Sally McManus, who argue that Australia's right to strike laws are too restrictive and need reform.
| Characteristics | Values |
|---|---|
| International laws on the right to strike | The United Nations (UN) declared "strike action to be a right" and one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests |
| Australia's laws on the right to strike | In Australia, industrial action is generally unlawful. Workers have only limited rights to take "protected" industrial action free from threat. |
| International laws vs. Australia's laws | The restrictions Australia has placed on that right place the country at odds with international conventions. |
| International Labour Organisation (ILO) on Australia's laws | The ILO has repeatedly told the Australian government that the country is in breach of international labour standards. |
| Other countries' laws on the right to strike | Countries like the United Kingdom and the US afford more liberty to workers to take industrial action. |
| Pre-conditions to go on strike in Australia | Before workers can take a bargaining strike, they must have an enterprise agreement that has passed its nominal expiry date, be in the process of bargaining for an enterprise agreement, apply for a protected action ballot order, hold a secret ballot, and give their employer three clear days' notice of the strike. |
| Consequences of not following pre-conditions | If workers do not follow the pre-conditions, they could face legal consequences. |
| Exceptions to the right to strike | There are special rules that apply to employees of 'essential services', such as hospitals, airports, and energy suppliers. These employees can only take protected industrial action in limited circumstances. |
| Unions' role in strikes | Unions have been considered a tool to protect workers' rights. However, unions have lost their power over time due to various incidents, such as the sacking of 1100 power workers for going on strike in 1985. |
| Political involvement | Political parties, such as the Australian Labor Party, have been criticized for not doing enough to protect the right to strike and even bringing in restrictive laws. |
| Public sector impact | The legal restrictions on striking, combined with government wage policies, have contributed to stagnated public wages. |
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What You'll Learn
- Australia's right to strike laws are restrictive compared to international standards
- The right to strike is recognised as a fundamental human right under international law
- Australian laws only allow strikes during the negotiation of an enterprise agreement
- The International Labour Organisation (ILO) has found Australia's laws breach international obligations
- Unions have lost their power, and workers are too afraid to strike
Australia's right to strike laws are restrictive compared to international standards
Australia's right-to-strike laws are restrictive compared to international standards. The International Labour Organisation (ILO), a UN agency overseeing labour standards, has repeatedly stated that Australia's laws breach international labour standards. The ILO emphasises that the ability to strike should not be limited to collective agreement disputes but should also enable workers to express dissatisfaction with economic and social policy matters.
In Australia, industrial action is generally unlawful, with workers only having limited rights to take "protected" industrial action. This is in contrast to international human rights and labour conventions, which support a general right to strike, with certain exceptions, such as maintaining essential services. The ILO's committee of experts wrote in 1983 that "the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests".
The preconditions and legal hurdles to conducting a lawful strike in Australia are extensive. These include mandatory voting processes, strict notice requirements, and the restriction that strikes can only occur during the negotiation of an enterprise agreement. These requirements make it challenging for workers, particularly in the public sector, to use strikes effectively to advocate for better wages and conditions.
Australia's laws against industrial action are not only in breach of international law but also stand out among advanced economies with a tradition of civil liberty. Countries like the United Kingdom and the United States afford their workers more freedom to take industrial action.
The restrictive nature of Australia's right-to-strike laws has led to criticism from various quarters. The Australian Council of Trade Unions (ACTU) leader, Sally McManus, has commented that the right to strike in Australia is too restrictive, and her remarks sparked debate about the country's laws on industrial action compared to international norms.
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The right to strike is recognised as a fundamental human right under international law
The right to strike is a fundamental human right recognised by international human rights and labour law. The United Nations (UN) declared "strike action to be a right" and "one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests". The UN's International Labour Organisation (ILO) has repeatedly emphasised that the ability to go on strike should not only apply during workplace disputes over collective agreements.
The ILO has also found on numerous occasions that Australia's protected action laws breach international obligations to protect the right to strike. Australia's laws against industrial action are not only in breach of international law, but they are also more restrictive on the right to strike than the laws of almost every other developed country. The legal and administrative processes that workers and unions must go through before pursuing industrial action in Australia are onerous.
International human rights and labour conventions support a general right to strike, with exceptions, for example, to maintain essential services. The International Covenant on Economic, Social and Cultural Rights (article 8) includes protections for trade unions and a clear declaration of a right to strike. The International Covenant on Civil and Political Rights (article 22) outlines the right to form and join a trade union, as does the European Convention on Human Rights (article 11) and the American Convention on Human Rights (article 16). The right is also enshrined in the constitutions of at least 90 countries.
The right to strike is an intrinsic corollary of the fundamental right of freedom of association. It is crucial for workers to assert their rights in the workplace collectively, including the right to just and favourable conditions of work, and to work in dignity and without fear of intimidation and persecution. Moreover, protest action in relation to government social and economic policy and against negative corporate practices forms part of the basic civil liberties whose respect is essential for the meaningful exercise of other civil and political rights.
The right to engage in collective action has been one of the main values behind the appearance and evolution of labour law during the twentieth century. It is, as Judge Pinto de Albuquerque pointed out, "the core of the core" of Freedom of Association, and it is impossible to understand the development of trade union rights without it. Labour law has, as its centre, the concern for the welfare of workers and a concern for the inequality of bargaining between them and the employers, and industrial action has been one of the most effective ways to counterbalance such disparities.
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Australian laws only allow strikes during the negotiation of an enterprise agreement
In Australia, industrial action is generally unlawful, with workers having only limited rights to take "protected" industrial action without facing fines, monetary damages, or dismissal. International human rights and labour conventions support a general right to strike, with exceptions, for example, to maintain essential services. However, Australian laws place restrictions on this right, allowing strikes only during the negotiation of an enterprise agreement.
The Fair Work Act 2009 outlines the procedures for protected industrial action, which include complying with any relevant orders or declarations, such as attending mediation or conciliation conferences, and not taking action before the nominal expiry date of a registered agreement. Employees who take protected industrial action are generally protected from legal action and dismissal under State and Territory Laws, with some exceptions for conduct involving personal injury or property damage.
To take a bargaining strike, workers must follow several steps, including having an enterprise agreement that has passed its nominal expiry date, applying for a protected action ballot order, holding a secret ballot, and giving their employer three days' notice (unless a different notice period is ordered by the Fair Work Commission). Even during this bargaining period, employers can retaliate by locking out employees without notice and for an indefinite period.
The International Labour Organisation (ILO) has repeatedly stated that Australia's laws breach international obligations to protect the right to strike. According to the ILO, the ability to strike should not be limited to workplace disputes over collective agreements but should also enable workers to express dissatisfaction with economic and social policy matters.
In summary, Australian laws restrict the right to strike by allowing strikes only during the negotiation of enterprise agreements. These laws have been criticized for being out of step with international norms and for failing to adequately protect workers' rights to industrial action.
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The International Labour Organisation (ILO) has found Australia's laws breach international obligations
The International Labour Organisation (ILO) has repeatedly found that Australia's laws breach international obligations to protect the right to strike. The ILO has emphasised that the ability to strike should not be limited to workplace disputes over collective agreements. Instead, the right to strike in international law allows workers to express their dissatisfaction through industrial action regarding economic and social policy matters.
In contrast, Australian laws restrict strikes to only occur during the negotiation of a proposed enterprise agreement. At all other times, strikes are unlawful, and workers and unions may face legal consequences. This includes fines, monetary damages, and dismissal. The preconditions and legal hurdles required to carry out a lawful strike in Australia are numerous, including mandatory voting processes, strict notice requirements, and the limitation that strikes can only occur during the period of enterprise agreement negotiations.
The ILO's committee of experts wrote in a key statement in 1983 that "the right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests." This perspective is shared by the United Nations (UN), which declared "strike action to be a right" and "one of the principal means by which workers and their associations may legitimately promote and defend their economic and social interests."
Australia's laws against industrial action are not only in breach of international law but are also more restrictive than the laws of other advanced economies with a tradition of civil liberty. Professor Andrew Stewart of Adelaide University, an expert on labour law, has stated that Australia's laws are "flagrantly in breach" and "way out of step" with the laws of other developed countries. The restrictive nature of Australia's laws has made it challenging for public sector workers to advocate for better wages and conditions, leading to stagnated public wages.
The right to strike or withdraw labour is an internationally recognised human right. However, Australia's laws place significant restrictions on this right, which has resulted in criticism from organisations such as the ILO and the UN.
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Unions have lost their power, and workers are too afraid to strike
The Australian Council of Trade Unions (ACTU) leader Sally McManus once remarked that she didn't have an issue with people breaking "unjust laws". She faced backlash from business groups, conservative politicians, and the Opposition Leader, who distanced the Labor Party from her comments. McManus' comments were made in the context of her view that Australia's right to strike was too restrictive.
Indeed, Australia's laws against industrial action are in breach of international law and are far more restrictive than those of other advanced economies. The International Labour Organisation (ILO), a UN agency overseeing labour standards, has repeatedly stated that Australia is in breach of international labour standards.
Under Australian laws, strikes can only legally occur during the negotiation of a proposed enterprise agreement. At all other times, they are unlawful, and workers and unions may face legal consequences. Even during this bargaining period, there are several restrictions, including mandatory voting processes, strict notice requirements, and the need to hold a secret ballot. These preconditions make it challenging for workers to advocate for better wages and conditions, leading to stagnated public wages.
Unions in Australia have lost much of their power, with a notable example being when 1100 power workers were sacked for going on strike in 1985, and the union capitulated. The fear of losing their jobs may deter workers from striking, especially in an economic climate where many are in debt and have much to lose.
While the Fair Work Act 2009 protects workers from victimisation and dismissal for taking part in protected industrial action, the numerous legal and administrative hoops that must be navigated have made it difficult for workers to exercise their right to strike.
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Frequently asked questions
Industrial action is action taken by a worker to try and improve their wages and working conditions. This can include going on strike, refusing to perform duties, or limiting the performance of work.
In Australia, industrial action is generally unlawful. Workers have limited rights to take "protected" industrial action, which is free from the threat of fines or dismissal. However, there are preconditions and legal hurdles that make it difficult for workers to strike lawfully.
The United Nations (UN) and the International Labour Organisation (ILO) recognise the right to strike as a fundamental human right. The ILO has stated that Australia's laws breach international obligations to protect this right.
The restrictive strike laws in Australia have made it difficult for workers, particularly in the public sector, to advocate for better wages and conditions. This has led to stagnating public wages and a reduction in living standards.
Joining unions and participating in collective working-class action can help workers assert their rights and negotiate for higher pay and fair working conditions. However, some critics argue that the focus should be on preventing unions or businesses from gaining too much power, which could lead to constant strikes and instability.
