Should There Be a Freedom To Strike?
Today we are debating whether there ought to be a
right to strike in Australia. For reasons which I
will state later, I prefer to couch the debate in terms
of a freedom to strike rather than a right to strike.
This is because I regard the freedom to strike as
a fundamental freedom which has a place in a free and
democratic society alongside other fundamental freedoms
such as freedom of speech, the freedom to vote, the
freedom to hold property and so on. The term 'right'
as distinct from 'freedom', implies a privilege which
others do not share and which is at their expense.
As I shall argue, this is not the way in which we
should view the freedom to strike.
It is important in a debate such as this to clearly
articulate our fundamental assumptions. Why we believe
the freedom to strike is important. For a start the
freedom to strike is not an inherently socialist principle.
We have seen that socialist societies have equally
been capable of repressing the freedom to strike for
the so called common good, as have other societies.
The freedom to strike is a fundamental human right
because it is an essential ingredient of a free and
democratic society and of freedom itself. Recent events
in the Soviet Union only go to underlay this. Isn't
it ironic that in the week during which I have been
preparing for this debate that a headline should appear
in the 'Herald-Sun': 'Ban Strikes-Gorbachev'. In addition
to assuming that we all desire a free and democratic
society, I also make an assumption that we have a common
goal of creating a fair and just society.
A freedom to strike, like all other fundamental freedoms,
cannot be an absolute right. Just as the law of defamation
proscribes the freedom of speech in our society, there
must be restrictions on the freedom to strike. We
cannot have a situation in which the full flowering
of one freedom effectively eliminates other freedoms.
So, as I will state later, the freedom to strike must
be proscribed in essential services and probably in
situations of genuine secondary boycotts. It may also
be that in the context of a truly arbitral system of
industrial relations the freedom to strike should,
too, be rather restricted.
We should also be absolutely clear about another fact.
That is, that there is in Australia at the present
time no right to strike or no freedom to strike as
a matter of law. The industrial torts in combination
with ss 45D, 45E of the Trade Practices Act make every
form of concerted industrial action lawful.1 If there
is any freedom to strike in a defacto sense then it
only exists because employers do not, in all cases,
exercise their legal rights. So what we are talking
about here today is not whether an existing right or
freedom should be enshrined in legislation, but whether
something which does not presently exist in law should
in some circumstances be permitted. It is a nonsense
to say, as did Peter Costello in a recent letter to
the Age newspaper (5/04/91) that 'the individual has
the freedom to strike 'because' employees in Australia
are free to withdraw their labour (strike) on proper
notice without any liability'. This is because the
very essence of a strike is the concerted withdrawal
of labour usually, but not necessarily, involving concert
with a trade union.
As Professor Sykes said in his seminal work Strike
Law in Australia:
There may be difficulties as to whether the word 'strike'
is properly applied to particular situations, but there
is little difficulty about the general notion conveyed.
The general notion is simply that of a concerted refusal
to work, a 'downing of tools', with the object of thereby
gaining some concession or wresting some advantage
from some other person who in normal circumstances
would be an employer. The notion of 'concert' is essential.
The right of the individual to terminate his employment
has always been regarded as his inalienable right under
a free democracy. Nor would any government feel obliged
to apply any sanction against the action of a number
of employees who, without concert, happened to quit
the employment at roughly the same time. These situations
contemplate, however, individual action only. The
term 'strike', in contradistinction, is usually applied
to the situation where the withholding of labour services
is done pursuant to a combination or agreement designed
to secure some form of industrial benefit.2
I will turn now to less abstract considerations of
this issue. Members of the H R Nicholls Society have
in the past placed considerable reliance on the argument
that employers should be free to exercise their
common law or civil law rights. They place great reliance
on the notion that the common law is a wonderful beast
which somehow or other applies to everyone, and that
unions in any event should not be above it. It is,
of course, living in a dream world to reify the common
law in this way. For most of this century we have
passed massive amounts of legislation to overcome inherent
injustices and weaknesses in the common law. Section
45D of the Trade Practices Act is just one example,
but looking a little wider afield, other provisions
of the Trade Practices Act itself also seek to ensure
freedom of competition in the market place and to prohibit
anti-competitive and monopolistic practices. The common
law quite clearly failed to do these things so the
legislation was necessary. Company law too has, of
course, undergone massive statutory modifications because
the common law has totally failed to protect the rights
and freedoms of individual shareholders. But if,
as members of the H R Nicholls' Society have been want
to do, we look to the common law as a source of inspiration
in this area, we can see massive inconsistencies in
the common law itself. Two important common law doctrines
have sought to provide a foundation stone for the freedom
of workers in an analogous sense to the freedom to
strike. In the first place the restraint of trade
doctrine strikes down contracts which unreasonably
interfere with the worker's freedom to trade. The
doctrine has its roots in a philosophy that workers
should not be slaves. As Lord Justice Bowen said in
Davies v Davies  36 Ch D 359: 'The law
... allows a man to contract for his labour ...
but it does not allow him to attach to his contract
of service any servile incidents---any elements of
servitude as distinguished from service'.3
The other doctrine is the rule against specific performance
of contracts of employment. It too has its roots in
a notion that people should not be forced to work where
the relationship of trust and confidence between the
employer and the employee has broken down.
It is ironic then, that the common law industrial
torts and the kinds of injunctions which are granted
under them cut directly across these common law doctrines.
They in effect force workers back to work against
Another myth pedalled by opponents of tort immunity
for unions and workers is that the torts apply equally
to all in our society. That business is equally subject
to the industrial torts in particular. In abstract---removed from the practical operation of the
torts---this claim is superficially valid. But it
ignores the fundamental difference between business
corporations and trade unions. By and large the torts
make unlawful concerted or collective
action or threats to cause third parties damage. For
instance conspiracy to injure, three party intimidation.
But a large business corporation acts as a single
legal entity. Decisions made within the corporation
to harm or damage workers e.g.; to make retrenchments,
or to remove over award pay are made behind the corporate
veil. Company directors or managers may 'conspire'
to do these things but it cannot ever be proved. Such
decisions are not democratically made or reported and
the ultimate decision is made in the name of the corporation
alone. But unions cannot hide behind such a veil of
secrecy. Not only are they inherently democratic and
open organisations but they are required by Industrial
laws to be so. A decision to strike will generally
be made by the membership in concert with the union's
officials. The practical effect is to make the democratic
nature of unions a liability in law. It is all too
easy for lawyers to prove action in concert and by
whom. So unions are not equal before the law once
we move from abstract principles to the real effect
of the law.
Those who claim that unions are equal before the law
also ignore the historical context in which the industrial
torts developed. How many of you have read the seminal
cases through which the various torts developed. If
you have not you should do so before you go around
waxing lyrical about the common law. A good starting
point would be a book I have co-authored with Ron McCallum
and Marylin Pittard, titled 'Australian Labour Law'.4
An examination of the development of the torts shows
that they were evolved from principles of general
application and developed to restrict the statutory
right to strike given to British trade unions by the
Trades Disputes Act 1906. Under that Act (which was
itself a legislative response to judicial decisions)union
industrial action was protected from tort liability,
if it was in furtherance of a trade dispute.
Such action still is immune in Britain if an appropriate
secret ballot of the members favours the strike! But
the British Courts---arguably without Constitutional
authority to do so, have sought to emasculate these
so called 'immunities' in a misguided attempt to balance
out the economic power of unions and employers. Many
argue---legitimately I believe---that they have tipped
the balance too far to the employer side.
In Australia---where unions outside South Australia
enjoy no immunity in tort---the blind acceptance of
the British cases into Australian law has resulted
in a situation where there is no right to strike.
In my view the widespread use of the torts is going
to make the enactment of some form of statutory positive
right to strike inevitable. Even under a Liberal government!
Members of the H R Nicholls Society may be incredulous
at this suggestion but consider our obligations under
international law and the strengthening of the moral
force of UN Covenants following the war with Iraq.
Australia is a signatory to the UN International Covenant
on Economic Social and Cultural Rights. Article 8
of that Covenant provides:
The States Parties to the Covenant undertake to ensure...
(d) The Right to strike, provided that it is exercised
in conformity with the laws of the particular country.
The article goes on to make an exception for the armed
forces, police and the public service---permitting restrictions
on their rights to strike . Additionally it does not
permit states party to the ILO Convention on Freedom
of Association and Protection of the Right to Organise
'to take legislative measures which would prejudice,
or apply the law in such a manner as would prejudice,
the guarantees' provided for in that Convention. The
net result, given that Australia is signatory to the
ILO Convention, is that restrictions on the right to
strike in Australia may only be substantial in the
armed forces, police and the public service. The 'law
must not be such as to impair, nor must it be so applied
as to impair, the generally accepted rights of trade
unions' to take industrial action.5 Otherwise a State
will be in breach of the Covenant.
The obligation to ensure freedom to strike is taken
seriously by many Western, and even Third World Countries.
Take for instance Act No. 7783, June 1989 enacted
in Brazil. Clause 1 of the Act provides that 'the
right to strike shall be guaranteed. Workers have
the right to determine when the right to strike shall
be exercised and to define the range of interests to
be defended by strike action'.
The Act goes on to impose restrictions on the right
to strike, including
- a requirement of 48 hour notice of a strike
- a requirement that 'demonstrations and acts of persuasion
by strikers shall not impede access to work, impose
threats or cause harm to persons or property'
- a provision that strikes will merely 'have the effect
of suspending the contract of employment'
- strikes in essential services require 72 hours notice.
Viewed as a package, the Act seems to an Australian,
to be remarkably benevolent to workers, but in reality
all it achieves is conformity with the UN Covenant.
The fact is, that Australia is, in its legal approach
to strikes way out of kilter with the rest of the world.
Most European countries have legislated positive rights
for workers or unions to strike6 and even Japan has
the right to strike enshrined in its Constitution.
It was put there after World War 2 as a protection
from fascism. If you doubt my assertion that Australia
clearly infringes its obligations under international
law by failing to ensure a right to strike---consider
carefully the following statement made by an Australian
Federal Court Judge at a Law Asia Conference in Delhi,
India in 1990:
The existence of the vast array of legal constraints
to the taking of strike action Australia, which has
been described in this paper, makes it clear that no-one
can speak truly of a right to strike in Australia.
There is no mere circumscribing of the right to strike,
the laws in conformity with which the right may be
exercised, as is required by the International Covenant
on Economic, Social and Cultural Rights. Not only
does Australian law not contain a positive expression
of the right, its effect is to make all participants
in any strike (except in South Australia) subject to
civil liability for damages and injunction, and to
penal liability for contempt of court if the strike
persists after an injunction has been granted, even
if the injunction is granted without a final hearing.
Further, participants in many strikes are liable
to civil and criminal penalties. Unions may be crushed
financially, and deprived of their legal personality
and their ability to represent their members in the
conciliation and arbitration systems.7
Of course, a freedom to strike must be tailored so
as to be compatible with a countries industrial relations
system. And it must protect the rights of employers
and the community at large. It is all a question of
It is often argued that a freedom to strike is incompatible
with our system of compulsory arbitration. I will
deal with this argument in a moment but if I may first
make an aside about the relevance of the argument here
today. Unless I have grossly misinterpreted the views
of members of the H R Nicholls Society, it seems you
would prefer not to have a system of compulsory arbitration.
This presents you with a dilemma---if the major justification
for greatly restricting the freedom to strike is removed---how do you justify your argument that freedom to
strike legislation is unnecessary? In passing I merely
note that New Zealand has included a positive right
to strike in its recent Employment Contracts Act!
Anyway, if we return to the broader argument I should
first like to quote once again from Professor Sykes.
It cannot be said that the Australian arbitration
system is completely compulsory at all points. But
in so far as it predicates that the award or decision
made by the Court has legal force, it is asserted that
it must assume that a strike which has for its object
or involves the disobedience of the award must be illegal.
This matter is more fully discussed later, but for
the moment it must be remarked that the matter is not
so simple as it sounds; it depends very much on the
nature of the Court award. The pattern of many awards
is that of the imposition of minimum obligations on
the employer and not the imposition of obligations
on the part of the employee. Theoretically it may
well be argued that the union should be able to struggle
for the obtaining of further concessions above the
prescribed minimum limit binding on the employer and
use the strike weapon for that purpose. The matter
of an award imposing bi-lateral obligations may well
Certainly the framers of the Federal Constitution
envisaged the arbitration power as introductive of
a 'new province for law and order' where legally regulated
processes would replace the law of the jungle. Nowhere
is this theory more strongly expressed than in the
writings of the late Mr. Justice Higgins, the second
President of the Commonwealth Arbitration Court, but
there is also abundant evidence of its strength in
the Convention Debates and also in the debates in the
Federal House following the introduction of the first
Commonwealth Conciliation and Arbitration Bill in 1903.8
As we all know, the arbitration system has largely
failed to make strikes redundant---or to create a new
province for law and order. But to some extent the
reasons for this are made clear by Professor Sykes.
First, awards are by and large only minima---and bind
the employer.9 Second, the system envisages forms
of collective bargaining with arbitration as only a
One reason why the 1980's has exacerbated the dilemma
about the right to strike is that the centralised wage
system has on the one hand tried to encourage collective
bargaining---or productivity bargaining through the
award restructuring process---but on the other to make
awards a maximum through the no extra claims undertakings.
The only way to make such a system work---and it is
a system which I argue is inherently corporatist and
coercive---is to greatly restrict the right to strike.
Ask the pilots! (and if you want to follow up my arguments
on this see my article titled 'From Consensus to Coercion:
The Australian Air Pilots Dispute' (1990) 32 J.I.R.238).
In this regard I thought Kenneth Davidson remarks
in a recent article in the Age on the right to strike
rather perceptive. He said two of the industrial relations
lessons of the 1980's are:
- The right to strike is incompatible with a centralised
wage-fixing system within Australia's arbitration system,
- Legal sanctions against strikes by groups of workers
who step outside the system are likely to be more effective
if the sanctions against renegade groups are supported
by the rest of the trade union movement.10
So what is the answer?
We must search for a system of industrial relations
which results in less strikes---not because they are
banned---but because the system makes more obvious
to the parties that strikes are in neither of their
interests. I believe that such a system will not be
one based purely on enterprise bargaining or individual
bargaining. It is possible to maintain the fundamentals
of our system of industrial award regulation---if only
to maintain basic rights about matters such as unfair
dismissal, maternity leave etc.---but link it with
other mechanisms designed to engender the mutual
self interests of labour and capital. Mechanisms such
as profit sharing and employee share ownership can
go a long way towards achieving these ends. But less
confrontationist union and management attitudes are
So my hope is that the freedom to strike legislation
I am arguing for, will become a dead letter. An anachronism
on the statute books---rather like the Constitutional
guarantee of the freedom to strike in Japan.
1. See Gray, Ewing.
2. Law Book Co., 1960, p.26.
3. Davies v Davies, at p.393.
4. See R.C. McCallum, M. Pittard and G.F. Smith, Australian
Labour Law: Cases and Materials. Butterworths,
1990. See also Wedderburn, The Worker and the Law,
3rd ed. Penguin, 1986.
5. R. Ben-Israel, International Labour Standards:
The Case of the Freedom to Strike, Klumer, 1988,
6. See Roy Green, The Right to Strike: Options for
New Industrial Legislation, Evatt Foundation, 1990,.
7. Peter R.A. Gray, 'The Right to Strike in Australia'
8. Sykes, Strike Law in Australia, supra, at
9. This observation is subject to any 'no extra claims'
commitment made by a union to the IRC and is subject
to provision such as Section 312 of the Industrial
Relations Act 1988 (Cth).
10. 'The Right to strike poses a dilemma for unions',
The Age, March 1991.