"the freedom to strike has emerged as an essential tool for achieving basic freedoms."

Flouting the rule of international labour law

Chris White measures Howard's radical agenda against international standards.

The Howard government again moves to implement radical right-wing industrial relations policies - this time with Senate power. Contested industrial relations politics are high on the public agenda. There are many important industrial relations issues.

This paper is about the international protection of the right to strike in the International Labour Organisation (ILO) standards. The questionable application to Australian labour law is analysed. The limitations on the scope of the right to strike, protected action under the Workplace Relations Act (1996), WR Act (1996) and how recent politics has seen a failure to comply with minimum ILO workplace standards is described.

The Howard government's proposed new labour laws in 2006 further breached ILO obligations. These include the Better Bargaining Bill (2005) (BB Bill) and the repressive regime for unions in the Building and Construction Industry Improvement Bill (2005) (BCII Bill), as well as pre-strike ballots and further radical right-wing proposals.

The Minister of Workplace Relations, Kevin Andrews (Minister Andrews), employs 'spin' in denying any move to strip back the right to strike. But it is clear that the legal right to strike is under severe attack, to the point of suppression. This is an important, contestable industrial relations issue. The erosion of collective worker freedoms is alarming in a democracy.

The ILO is the United Nations tripartite agency responsible for setting and monitoring basic minimum workplace standards - International Labour Standards (ILS). Australia voluntarily agreed to and is bound to implement ILS in Australian labour law, including the international jurisprudence protecting the right to strike from legal sanctions.

Minister Andrews, in the June 2005 ILO Annual Conference, took Australia back within the ILO, as Australia was elected on the ILO Governing Council representing the Asia-Pacific region. His public recognition of the ILO has given impetus to the ILS debate.

Minister Andrews said 'I suppose our view is that it is better to be inside the tent rather than outside'. What role, other than opposition to ILO standards, is not yet clear.

The Howard government has been 'markedly less well disposed to the ILO than its predecessor', ranging from downgrading participation to hostility and contempt (Creighton and Stewart, 2005:65). ACTU President Burrow said it was 'unbelievable' the government was rejoining the governing body of the ILO when it was 'seeking to further undermine freedom of association to collective bargaining'. Minister Andrews said he would respond to recent ACTU complaints about Australia's non-compliance with ILS.

The ILO, with Australia as a founding member since 1919, is uniquely based on a tripartite structure, where governments, unions and employers have equal status. At the annual International Labour Conference, the ILS are adopted with two-thirds majorities. These international policy agreements represent norms accepted and developed throughout the twentieth century based on industrial relations Realpolitik.

Compromises have been reached on basic minimum standards for workforces and employers. The ILO Constitution is based on the consensus that asserts 'labour is not a commodity' and aims for 'social justice' in the workplace. Recognition of worker interests was to be taken into account with other economic goals. Union 'freedom of association' is a fundamental ILS and a basic human right. Ben-Israel (1988:1-2) explains the freedom to strike:

The phenomenon of the strike is one of the crucial problems of contemporary industrial relations because it lies at the very core of the legal regulation of industrial conflict. The strike is basic to the distribution of power between capital and labour, and also forms part of the problem of the autonomy of groups and their relationship to the State. The concept of the strike relates to issues which lie at the heart of the ideological conflicts of industrial relations. ... Since the late 1940's ... a basic consensus emerged, albeit slowly and somewhat grudgingly. The social partners' freedom of recourse to concerted activity gained recognition as an essential element of industrial relations without which freedom of association could not exist. Freedom of association is a fundamental human right ... Hence the freedom to strike has emerged as an essential tool for the implementation of such a basic freedom as freedom of association.

The importance of the ILO for employers remains securing agreement for 'fair competition' by companies in abiding by minimum labour standards, to prevent countries from gaining economic advantage in the labour market by the exploitation of their workforce. For governments, managing the 'labour problems' and ensuring stability for capitalist development remains paramount.

Novitz's International and European Protection of the Right to Strike (2003) is relied on in this paper, as it is a comprehensive analysis of the ILO right to strike standards in international law, ILO and European jurisprudence. Creighton is one of Australia's foremost ILO scholars, the other main reference.

Novitz (2003: chapters 5, 8, 11-14) and Creighton (1995, 1998, 2004) explain the tripartite agreed resolutions when setting ILO standards. This form of democratic participation in the policy process provides an important degree of global legitimacy in standards for settling strikes. Legal accommodation of workers using bargaining power through the threat of withdrawing labour has been accepted internationally. The right to strike standards to assist union collective bargaining have been enduring. This is notwithstanding varying developments of the right to strike, since the post-fascism period and during the Cold War period.

In recognising and responding to the current corporate globalisation era, the 1998 ILO Declaration of Fundamental Principles and Rights at Work agreed to core labour rights, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation. These ILO principles have contemporary relevance (Novitz, 2003:4-30; 95-123). This is notwithstanding some institutional crisis of the application of standards.

Australia 'has rarely encountered serious compliance problems in relation to those Conventions it has managed to ratify' (Creighton, 1995). However, (non) compliance over the last decade has become an issue.

The current era of corporate globalisation determines much of Australia's industrial relations policies and ideologies. The dominant economic neo-liberal agenda expresses hostility to any (perceived) interference with global market corporate forces. These corporate forces challenge ILO standards (Creighton, 2004:262-6), including the right to strike. So ILS compliance or the lack thereof is on the ILO and domestic agenda.

Since 1996, this government's industrial relations politics have not been tripartite, but markedly hostile to unionism and to the ACTU, a strong reversal of the Accord union co-operation under the Hawke and Keating Labor governments.

The Howard government is openly supportive of corporate interests and the business industrial relations lobby. The government's ministers of Workplace Relations embrace the ideology of the radical New Right and speak at the H R Nicholls Society.

The Prime Minister has for thirty years been politically active in his version of industrial relations reform, ideologically obsessed with rolling back union power. The reduction of union influence is Howard's main pre-occupation. This is a much more explicit feature of the government's 2005 policy. The 'spin' is that he is not taking away the right to strike, but we shall see.

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