DENIED THE RIGHT TO STRIKE: how broken bargaining laws prevent IEU members from taking protected industrial action.

Bargaining and the right to strike

While the United Nations International Covenant on Economic, Social and Cultural Rights 1996, ratified by Australia, recognises the basic right to strike, some workers in Australia are still denied this right.

This includes IEU members currently seeking to negotiate an Agreement which would cover 25,000 staff across most Victorian Catholic schools, as a result of a deliberate decision by employers to seek a Multi-Enterprise Agreement.

Under the Fair Work Act, union members can take protected industrial action if they meet certain requirements – for example, they must be in the process of bargaining for an Agreement, they must hold a secret ballot, and they must give their employer three days’ notice of their intention to take industrial action.

However, Section 413 subsection (2) of the Fair Work Act states: “The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.”

This one sentence denies employees negotiating Multi-Enterprise Agreements the right to take protected industrial action.

This absurd and unfair exclusion has not prevented IEU members from taking industrial action in the past – many members will remember the huge rallies of IEU members in Victorian Catholic education in 2012 and 2013. These were hugely effective, but they resulted in gag-orders being placed against the IEU and threats of fines against members – threats which were not followed through on and which would have been an extraordinary and unprecedented action for an employer in our sector to take against their own employees.

There are other disadvantages to unprotected industrial action – for example, participating members must legally be docked a minimum of four hours’ pay for any action taken, rather than the more proportionate docking of pay which would occur for protected industrial actions of shorter duration.

IEU members in Catholic education hit the streets in 2012

Why are we in this situation?

There was a clear way around this for Victorian Catholic schools – when bargaining commenced, the IEU asked employers to seek a ‘Single Interest Authorisation’, which would have meant that all normal bargaining rules would apply. This simply makes sense: these 33 employers are one system of Catholic schools – they are funded as one and, in most respects, operate as one, relying on a number of centralised systems.

The arrangement the IEU sought would mirror the one which operates effectively in NSW and the ACT, where members in almost 600 Catholic systemic schools across 11 dioceses are covered by a Single-Enterprise Agreement. Members in these schools can (and recently have) engaged in protected industrial action to support bargaining.

However, Victorian Catholic employers currently represented at the bargaining table by a single negotiating team refused to seek a Single Interest Authorisation, knowing full well the impact this would have on the industrial rights of their employees.

Let’s get this fixed

Over coming months, we have the opportunity to seek reform to these laws. The Australian Council of Trade Unions is campaigning at the Federal Government’s Job Summit for an overhaul of Multi-Employer industry-wide bargaining.

The changes they seek would not only grant all our members the right to apply to take protected industrial action, they would expand and simplify access to multi-employer bargaining so that workers in industries dispersed over many employers but with comparable conditions (such as child-care workers) could effectively bargain together.

This could also be a significant win for our members in independent schools, where the resource-intensive nature of bargaining workplace-by-workplace means that it is in practice impossible to ensure that every school employee benefits from union-negotiated pay and conditions.     

Meanwhile, the IEU is now seeking to negotiate individually with the 33 employers who have been represented in bargaining by Melbourne Archdiocese Catholic School negotiators. We are doing this in part to restore our members’ industrial rights - but also because we believe that MACS has not been bargaining in the best interests of individual employers, who right now need the certainty of a finalised deal and the ability to offer industry-standard conditions in a time of staff shortages.

IEU members in Catholic education hit the streets in 2012