FAIR WORK ACT BY COMMON WEALTH PARLIAMENT

QUESTION

Your task is to examine and analyse the article by Shae McCrystal The Fair Work Act

2009 (Cth) and the Right to Strike. (2009) (December) Vol 23 Australian Journal of

Labour Law 1.

What is the writer’s main hypothesis in this examination? In your analysis you are to choose five sources that the writer relies upon to put her argument. The sources can be court/tribunal decision/articles/reports etc relied upon by her to significantly advance the argument.  It should include at least two tribunal judgments/decisions and at least two articles.

Have these sources been used accurately and appropriately by the author? If so, how?

If not, why not? In light of your examination is the argument put by the writer validated by the sources and to the extent you can make an assessment is the argument both valid and balanced in the characterisation of the legislation?

SOLUTION

Introduction:

The right to take industrial action was duly considered by Commonwealth Parliament with regard to the Industrial Laws in 1993. Subsequently, benevolent legislations has been introduced by the governments all over the world recognizing the right to strike along with other protection duly granted with regard to the collective bargaining and other benefiaicial schemes rather than compulsory conciliation and arbitration which has failed to take into the account hardships suffered by the workmen. The key sources on which Shae McCrystal has relied upon to address her share of criticism to the present legislation are as follows:-

• The Right to Strike in consonance to the ILO Freedom of Association Conventions

 Right to strike is an inherent right of the workmen with respect to raise their legitimate demands against the management. As recognized internationally, the said principle is bound to be accepted by Australian legislation and give due share of credit to workmen by recognizing the right to strike as a legally enforceable right. The Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights (ICESR) provides that the States which are members to the present covenant undertakes that the right to strike must be recognized in uniformity and pass legislations appertaining to that.

The legislators while recognizing its international obligations in developing the Fair work Bill, has failed to take into account the said Article irrespective of the fact that the Australian government has ratified the aforesaid convention being an active member. The key opinion of the United Nations Economic, social and Cultural Rights Committee which is solely responsible in monitoring the International Covenant on Economic, Social and Cultural Rights (ICESR) had expressed its dissatisfaction with respect to the law prevalent in the member states pertaining to the local labour laws. In the present regards, Article 37(1) of the constitution of the International Labour Organisation must be read as part and parcel of the laws relating to the aforesaid subject and any dispute relating to the interpretation of the constitution or any Convention shall be the subject matter of jurisdiction of International Court of Justice which refers that decisions of Local Courts or Committee of Experts should not be considered as a binding precedent besides they may have their own persuasive value. But, irony of the fact is that the decisions of Committee of Experts and the CFA are considered to constitute jurisprudence over the present subject but yet the member states fail to implicit them in their local legislations.

• Freedom to form trade union implicit right to strike

The right to strike has been used as one of the countermeasures against the illegal/illegitimate demands of the management and at the same time address the needs and problems of the workmen faced in due course.  The right to strike not only advances effective negotiations between parties but also compel employer to pay heed to the demands as consequences as of a very grave nature.

The essence of ILO bargaining regime is more of voluntary talks between employers and employees and neither of them is compelled to enter into forceful agreements. The both parties can enter into an agreement while balancing their private needs with needs of another so as to cause least possible damage to the work. However, there is a constant battle between the economist with respect to the role of State intervention in resolving its disputes between the parties i.e. employer and employee so as to minimize the potential damage to be caused to economy with respect to the ongoing dispute. International Labour Organization principles of freedom of association not only curtail the impulse of illegitimate private gains of the employers but also help in regulating the market promoting the free market concept.

However at the same time, strike action is considered as necessary tool to engage in meaningful bargaining. The employers have been taken legal system for ride, with regard to hiring and firing of employees/workmen. Therefore, it becomes very important to grant prerogative right to the employees/workmen to curb such managerial practices and to strengthen the bargaining equation which the author has failed to address.  Freedom of Association convention mandates ratified states to incorporate welfare labour laws i.e. right to strike in their local legislation to prevent their exploitation and at the same time secure and promote their efforts towards boosting economy. The right to strike is based on 3 basic principles:

v Collective bargaining can only be strengthened in support of right to strike.

v However, right to strike should be subjected to certain limitations and when there is an excess of strike, than the state must intervene to resolve the dispute between the private parties.

v Illegal/illegitimate strike must be adequately and proportionately dealt with regard to local laws.

In contrast to the Australian Laws, the word “strike” has neither been defined nor categorized in Fair Work Act, 2009[1]. However, the legislators has deliberately used the word “industrial action” in the said Act under Section 19 which includes arrays of modes of strike i.e. partial work ban, hunger strike, go slow work, go fast strike, pen down strike etc[2]. By contrast, in Australia some early cases suggested that the word „strike‟ only encompasses a total withdrawal of labour and does not extend to other forms of industrial activities.[3]

• Obstacles to Industrial Action and interference in the course of Industrial action

International Labour organization recognizes the joint action of workers for their fellow workmen in different enterprises facing hardships. In view of that, they join their action to boycott the employers and work for an identical/noble cause which not only lead to strengthen the rights of exploited workmen but also provides an extension support to their power of bargaining scheme. Such collective mechanism/action as guided as “workers interest “ envisages uniformity in labour legislations and promote brotherhood etc. however, such sympathy action has been rigidly dealt in by the present Fair Work Act, 2009 which has been highly criticized by the Committee of Experts. In accordance to Fair Work Act such strikes could lead to abuse the freedom of association. Such failure has lead to protect the rights of workers to take appropriate actions against the illegal acts of other employers by supporting their fellow workmen working in some other organizations. The complexities had arisen in view of the aforesaid as keeping in view the ILO principles, the legislators has duly failed to abide by the principles enunciated by International Labour Organization and has caused anomaly of circumstances.

Such incoherent/disjointed legislations put blanket over the acts of the Industrial management giving rise to monopoly of the employers in Collective bargaining[4]. Such legislations consequently deteriorate the conditions of workmen and does not counterpart with principles guided by International Labour Organization.

• Media, Entertainment and Arts Alliance (MEA) (WA) v WA Ballet

The collected actions/omission with respect to strike pertaining to joint opposition to illegal/illegitimate demands of workmen is being restricted with respect to the FW Act. The Act contemplates protected industrial action regime but fails to take into account such collective action which would not only support the workers facing exploitation but would also broader social and economic interests of workers. In particular, industrial action will not be protected if it is undertaken to protest against direct legal or policy measures of government that will have a direct impact upon workers or undertaken to pressure a third party who has a direct or indirect say in the working conditions of workers. ILO standards do not limit the concept of workers interest solely to the interests of workers[5] In the present case, the capacity of an employer to pay wage increases which was directly affected by its reliance on funding from the Western Australian Government.

 ILO standards do not limit the concept of ‘workers interests‟ solely to the interests of workers in their employment conditions at a particular enterprise. Instead ILO standards recognize a broader concept of collectivism, whereby workers should be able to take strike action in support of other workers, providing that the strike action they are supporting is itself lawful.55 However, sympathy action cannot be protected industrial action under the FW Act and the Trade Practices Act 1974 (Cth) secondary boycott regime expressly outlaws sympathy action.56 These provisions have been criticised by the Committee of Experts over a number of years on the grounds that general prohibitions of sympathy strikes can lead to abuse and are inconsistent with the Freedom of Association Conventions.

In addition to this failure to protect the capacity of workers to take industrial action in defence of their broader socio-economic interests and in support of other employees, the protected industrial action provisions also fail to protect the right of employees to determine their own bargaining agenda and pursue that agenda through industrial action. The difficulty stems from incompatibility between ILO standards which support free and voluntary collective bargaining and the approach taken in the FW Act which controls the bargaining agenda of industrial parties. Industrial action may only support outcomes that are sanctioned by the FW Act. This limitation extends both to the level at which bargaining may be pursued and the matters over which agreement may be reached.

• AMWU v Minepro

Well, the usual procedure for conducting a secret ballot, the FW Act mandates the workmen representative to apply to FWA for permission to conduct a ballot[6]. This is an indirect mode adopted by the legislators to curb the rights of workmen as if permission is not accorded than refusal of which prevents the applicants exercising the right to strike. Permission is not discretionary. If the prerequisites are met, the order must be granted. But, the difficulty is the prerequisites. In determining whether or not it will grant a ballot application, FWA must be satisfied that the applicant has been, and is, genuinely trying to reach agreement with the other bargaining representatives for the proposed agreement. A ballot will be legitimate within the principle of freedom of association if it is focused on ensuring genuine and democratic decision making by members of the collective. The requirement that the applicant be “genuinely trying to reach agreement‟ has nothing to do with balloting employees about proposed industrial action. The genuinely trying to reach agreement requirement for a protected action ballot order is not about authorising industrial action and placed in the ballot context is contrary to the principle of freedom of association. This breach is exacerbated in practice because in order to assess whether an applicant is „genuinely trying to reach agreement, FWA may invite submissions from other bargaining representatives, including the relevant employer. Employers have no legitimate role in the ballot process. Under the WR Act, employers used the ballot application process to hold up protected action ballots, delaying access to protected industrial action. This often meant that the substantive ballot requirements operated in practice as a mechanism to police bargaining rather than to authorise protected industrial action. To comply with the Freedom of Association Conventions, the requirement that FWA assess whether an applicant is genuinely trying to reach agreement must be removed from the ballot process to ensure that the only decision is the decision of employees whether to authorise industrial action.

“An employer who did not intentionally and deliberately meet Trade Union or its members opposed the mode of ballot application stating that there were no genuine attempts made by the Trade Union to reach any agreement with the employer. However, the court held against the employer but it also reveals the conduct of slow ballot applications outcaste in practical terms and practice”[7].

Conclusion:

Well, the success of the legislation can be measured only on the basis of law enacted and its impact on the common man. The Australian government while enacting the present legislation has given due share to international obligations with respect to the appertaining treaties and Conventions over the present subject in passing the Fair Work Bill keeping in mind the principles guided by International labour Organisation. However, the subject matter of enactment has faced a thorough share of criticism with regard to obsolete and conservatory approach failing to consider the modern day needs and requirements. Keeping in mind the aforesaid law, Shae Mccrystal while acknowledging the efforts put in  by the legislators for enacting the FWA, 2009, has criticized the same with regard to non-observance/compliance of international standards. The present paper had examined the obligations of the legislators to duly recognize the right to strike in lieu of Freedom of Association Conventions in context to the parameters set up by International Labour Organisation. The paper also examines the nature of the Act with respect to the ratified conventions in effect to their operations. The author has went into the nitty-gritty’s of the aforesaid facts while focusing on the impact of the provisions of the statutes with respect to the industrial action and employees covered under the Act. The said impugned Act fails into account the provision of right to strike of workmen and further mandates FWA to seek an action pertaining to the loss or damage suffered by corporation when the worker ceases to work. The aforesaid provision is in contravention to the priniciples guided by International Labour Organsiation which duly provides right to strike in consonance to the principles of freedom of Association.

BIBLIOGRAPHY

AMWU v Minepro [2007] AIRC 233

Media, Entertainment and Arts Alliance (MEA) (WA) v WA Ballet  [2007] AIRC 139

McKernan v Fraser (1931) 46 CLR 343

Australian Commonwealth Shipping Board v Seaman’s Union of Australasia (1925) 35 CLR 462

Metal Trades Industry Association of Australia v AMWU (1997) 77 IR 87

The Age Co v CEPU (2004) 133 IR 197

Davids Distribution Pty Ltd v NUW (1999) 91 FCR 463.

Schanka v Employment National (Administration) Pty Ltd (2000) 97 FCR 186

AMWU v Unilever Australia Ltd (2003) 132 IR 34

Mandatory Secret Ballots Before Employee Industrial Action‟ (2007) 20 AJLL 272 at 282

United Collieries Pty Ltd v CFMEU [2006] FCA 904

Shae Mccrystal, “The Fair Work Act, 2009 and Right to Strike”

Retrieved from:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1546845

Shae Mccrystal, “Protected Industrial Action and Voluntary Collective Bargaining”

Retrieved from:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1753307

Parliament of Australia, Senate Standing Committee on Education, Employment and Workplace Relations 2009, Inquiry into the Fair Work Bill, Questions on Notice: Department of Education, Employment and Workplace Relations, available on line at http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/qon/qon25.pdf

Ratification information sourced from Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, 8 February, 2002. Online, Available:

http://www.unhchr.ch/pdf/report.pdf.

Parliament of Australia, Senate Standing Committee on Education, Employment and Workplace Relations 2009, Inquiry into the Fair Work Bill, Questions on Notice: Department of Education, Employment and Workplace Relations, available on line at http://www.aph.gov.au/Senate/committee/eet_ctte/fair_work/qon/qon25.pdf

CEPU, Complaint to Committee on Freedom of Association, 20 February 2009, Case 2698, available at:  http://webfusion.ilo.org/public/db/standards/normes/libsynd/index.cfm?hdroff=1.

Fair Work Australia, “Fair Work Act, 2009”available at:

http://www.workplace.gov.au/workplace/Publications/Legislation/FairWorkBill.htm

http://www.fwa.gov.au/index.cfm?pagename=legislationfwact

 Australian Chamber of Commerce and Industry, “Independent Review Criticises Aspects of Fair Work Laws: Memo To Government & The Opposition” available at:

http://www.acci.asn.au/Research-and-Publications/Media-Centre/Media-Releases-and-Transcripts/Workplace/Independent-Review-Criticizes-Aspects-of-Fair-Work

Anonymous,”Australian Labour Movement” available at:

http://en.wikipedia.org/wiki/Australian_labour_movement

Lenny Roth, 2009 ”Industrial Relations Update:  The referral and powers of Fair Work Act “available at:

http://www.google.co.in/url?sa=t&source=web&cd=9&ved=0CFcQFjAI&url=http%3A%2F%2Fwww.parliament.nsw.gov.au%2Fprod%2Fparlment%2Fpublications.nsf%2Fkey%2FIndustrialrelationsupdate%3AThereferralofpowersandtheFairWorkAct2009%2F%24File%2Findustrial%2Brelations%2Bupdate.E-brief.pdf&rct=j&q=fair%20work%20act%202009%3ACRITICISM&ei=57mKTv_WO8firAe13amSAg&usg=AFQjCNHqJWYgEI1KvMrgB4ScoKgIA0Fgaw

[1]McKernan v Fraser (1931) 46 CLR 343