The two and a half week strike at Woolworths’ distribution centres across Victoria and New South Wales finished up over the weekend, with workers accepting a new offer from the supermarket behemoth. The dispute arose from new(ish) productivity requirements being placed on workers.
“The new enterprise agreement won by workers breaks the link between measuring the speed of their work and automatic punishment if they fall behind — a system that effectively attempted to treat Woolworths warehouse workers like robots,” a United Workers Union (UWU) spokesperson said. The workers also received a payrise.
It’s worth being clear about this: this outcome was the result, at least in part, of illegal strike action.
Right to strike?
As we hinted in the intro, the proximal cause for the strike — the excessive and punitive monitoring of employee “efficiency” via an algorithm that predicts how long tasks should take — isn’t exactly new. As revealed by Guardian Australia’s Ariel Bogle in October, the framework was introduced late last year. So why did the strike only commence in late November this year? Partly it’s because that’s basically the only time it could, while those workers and the UWU were in the middle of negotiating an agreement. That is the only time a workforce can legally go on strike in Australia. No other context justifies a strike under Australian law — not safety concerns, not widespread bullying or sexual harassment, and not a punitive performance management scheme.
If you’re part of a workforce that doesn’t have an agreement (which is the majority of employees), you have no legal right to go on strike.
Lopsided playing field
Even during the negotiation period, there’s a topsy-turvy set of demands placed on the two parties. To engage in any protected industrial action during a negotiation period, a workforce has to apply to industrial relations watchdog the Fair Work Commission for a protected action ballot order and then conduct a ballot overseen by the electoral commission or an independent ballot agent. On the other hand, at the mere threat of a strike, an employer can instantly and unilaterally lock the whole workforce out of the business or, as Woolworths did in this case, attempt to break the strike by bussing in another workforce past the strike picket. An employer doesn’t have to apply to any regulator to do this.
And oh, the Fair Work Commission, can still rule to suspend industrial action on a bunch of different grounds — if it (once again) threatens to “cause significant damage to the Australian economy or an important part of it” or “cause significant economic harm to the employers or employees covered by the registered agreement”. The latter was the one of the grounds for Woolworths’ first official attempt to knock off the strike, when it argued the action had cost it $50 million.
There’s also the fairly nebulous requirement for “good faith bargaining“, which ultimately was the grounds Fair Work deputy president Gerard Boyce (hey, remember that guy?) used to rule against one of the key elements of the strike — the workers picketing the sites.
“It is clearly affecting third parties, including individual employees who wish to return to the work site, management and transporters or truck drivers of goods who seek to enter the work site,” he said. Again, its worth noting how sweeping this was. Boyce’s order not only required all UWU members and officials to allow any person or vehicle to cross their picket, but forbade them from:
[making, publishing, disseminating or distributing] any statement or representation … suggesting or indicating that any other person should do so, or expressing support (however described) for any other person doing so.
As industrial relations professor Shae McCrystal pointed out to the ABC, while declining to attend work as part of a strike is protected under the Fair Work Act, forming a picket line isn’t.
Some picketers continued regardless.
Protest in Australia
Outside the implications for industrial relations, the restrictions on protests on the grounds that it might “affect a third party” is hardly surprising — it is part of a long-term project to minimise organised dissent in Australia. As the Human Rights Law Centre reported in July, Australia’s federal, state and territory parliaments have over the past two decades passed 49 laws that remove, reduce or restrict our freedom to conduct protest action in public.
Have something to say about this article? Write to us at letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say. We reserve the right to edit for length and clarity.
