The Right to Politically Protest


On Wednesday 28th June, hundreds of thousands of people attended protest rallies, exercising their right to assembly and demonstrate. Thousands of union events, community meetings and barbecues have been held outside of Coalition MPs’ offices and in workplaces across the country. ‘Your Rights at Work’ orange buttons and ribbons were everywhere during the ACTU’s Week of Protest against WorkChoices.

These protests defend the occupational, social and economic interests of employees and working families. Protests are accepted as essential to our democracy. The campaign in marginal seats worries the Coalition. Beazley is differentiated on IR. Howard uses ‘doublethink’ for the opposite of what he does and obfuscates.

One issue is the right to politically protest against WorkChoices. This arose because Minister Andrews, before the 2005 protest rallies, tried to deny that right. Under the WorkChoices regime, Minister Andrews supports the right to protest, but only within the new law.

What are the arguments for the right to strike? Unions uphold today, as in the past, principles such as:

- that ‘our labour is not a commodity';

- work is not ‘forced labour’ – not forced by employers, Courts or Ministers;

- workers are ‘free and not slaves’ – asserted for centuries;

- employees are ‘not servants at the masters’ will’ – as we are in the 21st century;

- employees have the ‘freedom to associate and to organise’ in unions to collectively bargain and to defend socio-economic interests

- employees need autonomous unions without employer or state interference, and,

- employees have, as citizens, political opinions.

The right to strike has always been seen as a human right because of its clear relationship to the protection and promotion of human dignity (Ignatieff 2000). The right to strike is justified on socio-economic grounds which converge with traditional civil and political rights (Ewing 2004). One only needs to look at history to see the importance of understanding the right to strike as a human right. Workers have always asserted their human rights have been abused by suppression of the right to strike.

The right to strike on political issues is a human right because it protects the individual’s dignity not to be punished for legitimate collective industrial action.

Like many human rights, the right to strike is not an absolute right. There must be — and are — some limits which protect against abuse of this right. For example, three days notice to employers is an accepted process for industrial action. The notice is so disruption can be minimised. Recent ACTU protests are known months in advance. Notice ensures that public health and safety is ensured. Employees catch up after taking the short time off.

As a human right, the right to strike as an act of political protest is directly linked to freedom of association and freedom of expression. It allows citizens to take democratic action without the threat of sanctions.

Freedom of expression is essential in a democracy. Citizens must be entitled to express dissent about the government, to debate the merits of policies and to campaign for alternatives.

Even the Political Right concedes, in principle, the necessity of the right to strike. They recognise that contracts of employment are for service, not for servitude.

These IR protests are directly related to the occupational rights and social and economic interests of millions of employees. However, attending these rallies is not ‘protected action’ under the Workplace Relations Act, which allows only very limited lawful strikes in enterprise bargaining agreements.

Here the employee is expressing a political opinion, as contrasted with claims on the employer. It is legitimate and should not be unlawful.

As a political protest, this form of industrial action is legitimate in response to the government’s attack on working and living standards. Protest is appropriate against the WorkChoices regime which gives more power to employers, restricts the voice of employees and takes fairness out of the employee/employer relationship. Industrial relations practitioners tolerate and recognise that employees need a secure right to strike over such direct issues of concern.

The right to take political protest strike action is supported by the International Labour Organisation and in international labour minimum standards and international labour law jurisprudence (Novitz 2004, White 2005).

Thanks to Scratch.

In our modern democratic society, there is supposed to be some balance between employers and employees. Labour law should protect this balance by protecting employee rights against the greater power of corporations and employers. The richest CEO’s in the Business Council of Australia and other employer associations exercise power for their strategic interests. The government gives backing. The right to protest is essential to ensure that employees and their unions can protect their legitimate interests in fair labour laws.

Can there be a right to strike as an act of political protest in a Bill of Rights ?

The government clearly does not believe that the right to strike is a legitimate and practical right.

Minister Andrews went overboard last year when he called on employers to penalise employees attending the protests (Workplaceinfo 27/6/05). He alleged attending rallies was ‘inappropriate’ and ‘unprotected’ and, hence, ‘unlawful’, using Orwell’s 1984 ‘doublethink’. Disgracefully, he encouraged employers to dismiss employees.

However, the Australian Industrial Relations Commission AIRC, following precedent, disagreed with Mr Andrews. They declined to order workers not to attend.

Even building unionists stared down threats to prosecute from the secret building ‘police force’, the Australian Building and Construction Commission. Under specifically targeted new legislation rushed first through after Senate control, building workers’ civil rights have been removed to an alarming extent. They no longer have the right to remain silent and not to incriminate themselves. In investigations into industrial action, they are threatened with six months jail if they do not ‘dob’ in on a building union meeting. It is an extreme denial of civil rights (White 2006).

WorkChoices makes industrial action much more difficult to conduct (McCrystal 2006). The government clearly wishes to suppress strikes (White 2005b). Now employers can seek the application of new penal powers against all unprotected action. AIRC orders and court injunctions to halt industrial action, fines and the common law of tort and damages are available against unions. Threats of dismissal can be more easily made as the unfair dismissal remedy for many is removed.

Commissioners and judges now may say they apply the law. But it is manifestly unfair to penalise those protesting (except deducting wages for lost time).

Minister Andrews there is a right to politically protest, but only within the law. He has now changed the law. WorkChoices, most unreasonably, makes most industrial action unlawful. Industrial action during the term of a workplace agreement is outlawed. The Minister has unprecedented powers to politically intervene in strikes.

In effect, by changing the law to make political protest unlawful, the Minister has legally suppressed the right to protest. This important right has gone the way of those rights which were done away with in as part of the anti-terrorism laws last year.

The time has clearly arrived when Australia needs to give legal protection to fundamental human rights including the right to strike in political protest.

A positive right to strike forms part of the French, Greek, Italian, Portuguese and South African Constitutions. This is not a radical or revolutionary right. The government — through its decision to unreasonably restrict this fundamental right — is demonstrating the radical agenda.

Displayed in the foyer of the Australian Parliamentary Library, I found a speech by Clyde Cameron, former Labour Minister in the Whitlam government on ‘Industrial Protest: the Right to Strike’ who cited Republican President Eisenhower.

The right of workers to leave their jobs is a test of freedom. Hitler suppressed strikes. Stalin suppressed strikes. But each also suppressed freedom. There are some things worse than strikes, much worse than strikes — one of them is the loss of freedom.

Clyde Cameron continued:

Eisenhower was correct in pointing out that the hallmark of the Police State is the loss of the right to strike. A worker’s right to strike is surely a basic human right. The right to withdraw labour is the one thing that distinguishes a free worker from the slave. This is a fundamental freedom.

There is room to debate these freedoms and their parameters. Protest against labour legislation is clearly to be protected. Arguably so is protest in No War marches, on foreign affairs, with environmental community assemblies, green bans and protests against government political interference into the union. The freedom extends to whatever political opinion is determined by autonomous and democratic unions.

The formulation of a legal right to politically protest must be taken seriously.

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