Trains, strikes and the right to break unjust laws

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Cartoon by Mark David / @MDavidCartoons.

The weekend's Invasion Day protests are symbolic of a growing undercurrent of dissatisfaction with Australia's unjust laws, says John Passant.

MELBOURNE, I LOVE YOU. Your massive, up to 60,000 strong Invasion Day protest, was a great signal to the political class – and others – that many Australians reject celebrating genocide.

There can only really be a day to celebrate when, as I wrote recently, there is a Treaty, recognition of sovereignty and the rent is paid.

Where to now? The next steps are for Indigenous Australians to decide but, whatever they do decide, the big protests across Australia give a good base from which to build. My own view, as I explained recently, is that the genocide against Indigenous people is systemic and structural, and hence ongoing. Only a complete overthrow of current property relations will change that.

As I argued:

'The fight for better wages is the fight for a Treaty. The fight for a Treaty is the fight for better wages. Ultimately, to win a better world, we will have to sweep aside the system that is built on genocide, and which gives more and more wealth to the one per cent at our expense. ... Until then, every day is a day of genocide in Australia. There is nothing to celebrate until we are all free.'

The myth of the unity of labour and capital that the one per cent propagate, with Australia Day being one of its great examples, is undermined by the Invasion Day protests and the truth they point to — namely, that Australia is a society built on genocide.

Every day we Australian workers – be we black, blue, brindle, white, yellow or whatever other distinctions our rulers make – go to work, we do so on stolen land, a necessary precondition for the exploitation of our labour.

A day before Australia Day, the Fair Work Commission (FWC) handed down a decision that makes it clear we are not all in this together. Jonathan Hamberger, a senior Deputy President of the FWC, ordered that Sydney train drivers postpone their proposed strike – which had been scheduled for Monday 29 January – and lift their overtime bans.

The leadership of the union – the Rail, Tram and Bus Union (RTBU) – has complied with the order. It is not clear what rank and file members think since they appear not to have been asked their view on the orders, and whether to comply with them.   

Australian Council of Trade Unions (ACTU) Secretary Sally McManus has described the Hamberger decision as nearly ending the basic right to strike in Australia. This is not hyperbole.

The RTBU had followed all the very onerous legislative requirements under the Fair Work Act (introduced by the Rudd Labor Government in 2007) in order to impose the overtime ban and call the strike. Because it had done so, during the narrow enterprise bargaining negotiating period, the proposed action was a protected action, which meant the union and its members could not be fined for taking it.

However, the protected strike action and protected overtime bans threatened, as Hamberger put it in his judgment, ‘to endanger the welfare of part of the population’. It also threatened ‘to cause significant damage to the Australian economy or an important part of it.’ I know this might be an insight for some, but inflicting economic damage is what strikes and bans are meant to do.  

Hamberger’s decision shows the power of the train drivers and justifies their argument for a wage increase and better conditions. Maybe that economic power means they should be paid more and there should be more of them employed to help make the Sydney train system run better.  

But let’s be fair to Hamberger. Obviously, he just wants to ensure that the trains run on time.

Good luck with that, given the run-down nature of the service and management’s mistreatment of transport workers. It appears the long-term goal of the NSW Liberal Government could well be to privatise the train service — running it down over time to sell it off cheap to its mates is part of that process.  

Last year, NSW Transport Minister Andrew Constance set in place the privatisation of inner-west bus services. He ultimately wants driverless trains and buses.

Sally McManus has responded, not only with the warning that the right to strike is almost dead but by further emphasising the ACTU campaign to "change the rules".

Workers need more than words. Change the rules translates to Vote Labor and a Shorten government will fix things up. This ignores a couple of important facts.

There has never been a legal right to strike in Australia. At best, there have been periods when Parliament has allowed strikes but closely controlled them and imposed financial – and sometimes penal – penalties on "offenders". 

In 1969, John Kerr (yes, that one) gaoled union leader Clarrie O’Shea for "contempt of court" for failing to open up the union’s accounts. The union had had fines imposed as a result of taking industrial action. 

Rolling general strikes across Australia, organised by left-wing unions, saw the fines paid by a rich benefactor and O’Shea released from gaol after five days. The employers and the government were too frightened by the rolling general strikes to use the penal powers for some time.

In recent times, both Labor and LNP governments have legislated restrictions on strikes. Paul Keating, for example, gave us Enterprise Bargaining and limited strike capacity to the bargaining period. John Howard gave us the hated Workchoices, built on the philosophy we are all individuals capable of negotiating our own best wages and conditions. 

The Rudd Labor Government’s Fair Work laws were WorkChoices Lite. Among other things, they kept the restrictions on striking, only allowing it in the bargaining period.

Shorten Labor in power won’t enshrine a general and unqualified right to strike in law.

As secretary of the South Coast Labour Council Arthur Rorris wrote:

‘Federal Labor Shadow Minister Jason Clare was asked twice on ABC 24 on Sunday morning whether he supported the right to strike. He failed to do so. Maybe we should ask all our MPs the same question and publish their responses.’

There is only one way to change the rules and that is to break them. Sally McManus gave us hope last year when she said workers should break unjust laws.

Given that the Hamberger decision means there is not even a right to strike when you take protected action if it could cause economic damage, then it is time to defy Fair Work's laws and administration.

Our hope lies with rank and file Sydney train drivers organising the resistance right now. In the long term, it rests with the rank and file of all unions to take back their unions and break the rules so they can smash all restrictions on the right to strike.

Read more by John Passant on his website En Passant or follow him on Twitter @JohnPassantSigned copies of John's first book of poetry, Songs for the Band Unformed (Ginninderra Press 2016), are available for purchase from the IA store HERE.

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