{"id":854,"date":"2018-01-29T06:47:43","date_gmt":"2018-01-29T06:47:43","guid":{"rendered":"http:\/\/workplaceculturematters.com.au\/?p=854"},"modified":"2018-01-29T08:01:33","modified_gmt":"2018-01-29T08:01:33","slug":"854","status":"publish","type":"post","link":"https:\/\/workn.net.au\/?p=854","title":{"rendered":"The Sydney Rail Strike – why the Fair Work Commission had no choice."},"content":{"rendered":"

As an industrial lawyer, it was probably a mistake logging onto social media on Thursday, in the aftermath of the Fair Work Commission\u2019s order in relation to the RTBU strike proposed on the Sydney rail network.\u00a0 Social media in the modern political era is rarely a place for nuanced, informed or intelligent discussion.\u00a0 Rather, it has become a place where people from both sides of politics (there are only two sides by the way) do little more than \u2018like<\/em>\u2019, \u2018share<\/em>\u2019 and \u2018comment<\/em>\u2019 on pieces of web content that conform with their side\u2019s view, and to dismiss (or troll) anything that doesn\u2019t.<\/p>\n

The backlash to DP Hamberger\u2019s order was typically fervent.\u00a0 For example, Greens politician Adam Bandt stated: \u201cThe right to strike is under threat in Australia. We stand with rail workers who are organising for safe and fair working conditions and better pay [fist emoji]<\/em>\u201d. Mr Bandt\u2019s post led to a barrage of commentary, with common references to the \u2018Unfair Work Commission<\/em>\u2019, a comment describing the Commission as \u2018Liberal stooges<\/em>\u2019 (which for the record, has not been my experience of appearing before the Fair Work Commission), a comment that the rail workers had been \u2018spat on\u2019<\/em> by the Commission, and perhaps my favourite: \u2018fascist legal controlled by state government is on the rise.\u201d<\/em><\/p>\n

\"Bandt<\/a><\/p>\n

Overall, the message of the commentary seemed to be that the prevention of the strike was yet another example of the \u2018dystopian capitalist roll-back<\/em>\u2019 currently gripping the societies of the western world.\u00a0 In particular, it appeared as a regular view on Facebook that the legislative power to prevent this industrial action was new, or somehow recently introduced by government. This is plainly wrong, and deserves correction.<\/p>\n

It is with some irony that these industrial events centred around the Australia Day weekend. In my view, industrial relations is perhaps the one area of Australian politics of which we can be very proud. By international standards, Australia has always committed to and maintained a genuine balance. From the very early years of Australian political history, we have attempted to craft a system with appropriate harmony and tension between employer and employee interests. Consistent with Aussie informality, we call this ‘a fair go all round<\/em>‘.\u00a0 Most notably, the Concilation and Arbitration Act 1904<\/em> (Cth), was one of our very earliest, and most important, Commonwealth enactments. \u00a0Over the subsequent century, maintaining this balance between the employer and employee relationship has been a key part of our legal and political discourse.\u00a0 Three of our most famous and important High Court Cases concerning the scope of Commonwealth power: the Engineers Case<\/em>, the Boilermakers Case<\/em>, and the Work Choices Case<\/em>, have each originated as disputes over employment agreement making.\u00a0 The Coalition have only made one concerted attempt in the modern era to reform industrial relations in a manner which genuinely undermined the power of employees. This effort, in 2005, was the primary cause of the immediate demise of the most dominant Coalition government in modern history, following an ALP landslide in 2007. The modern Coalition, who seem unashamed to deny climate change, lock up infant refugees, and do everything in their power to block marriage equality, have spent over five years in office hedging around industrial relations like it is a poisoned chalice. It is therefore safe to say, that the value of the employment relationship sits at the very heart of our political and social consciousness.<\/p>\n

In the United States, liberals often cite the Australian system as a positive example of how substantial employee minimum wage and entitlement provisions can coexist with sustained economic growth.\u00a0 On the other hand, countries such as Greece have demonstrate that uncontained freedom and exercise of industrial action can have broadly detrimental consequences to economic and social well-being.\u00a0 To this end, both \u2018sides<\/em>\u2019 of politics should remember that we have always (at least in this one area of law) achieved a relatively healthy political compromise.<\/p>\n

\"45497517<\/a>It is not often that I go out on a limb to defend the Commonwealth executive. But on this occasion, I am happy to be the first to opine that there was nothing controversial about Thursday\u2019s order by the Commission.\u00a0 And nothing about it was inconsistent with the similar orders made in the late 1990s or early 2000s, under the equivalent provisions of the Workplace Relations Act 1996<\/em> (Cth).\u00a0 Further, I acknowledge that the Fair Work Commission members are political appointments, and Deputy President Hamberger was appointed to the Commission by a Coalition government, and has an industry, rather than union, background. However, I believe that the decision was non-partisan, and that any one of the many Commissioners or Deputy Presidents appointed from union backgrounds by Bill Shorten during the Rudd \/ Gillard government would have come to the same or similar result.<\/p>\n

The reason for this, is that the rationale for making the order is premised on very narrow grounds, contained in section 424 of the Fair Work Act 2009<\/em> (Cth).\u00a0 This has been feature of Act for a decade, and the various predecessor legislative instruments for generations. \u00a0Industrial action has never been \u2018protected\u2019 under Australian Law when it has the capacity to \u2018threaten the welfare of part of the population<\/em>\u2019, or to cause \u2018significant damage to the Australian economy or an important part of it\u2019<\/em>.<\/p>\n

The Deputy President held that the strike would threaten welfare of part of the population, recognising the number of people that rely upon the trains to go about their daily business, and making specific reference to the already congested conditions of Sydney roads, which are dangerous as they are, without thousands of additional cars, busses, and pedestrians. <\/p>\n

However, the Deputy President also held that the strike would significantly damage the economy of Sydney. To understand the meaning and importance of this provision, we need to look a little more deeply at the concept of \u2018the economy<\/em>.\u2019\u00a0 In the politically polarised world of \u2018like\u2019 <\/em>and \u2018share<\/em>\u2019 social media, \u2018the economy\u2019<\/em> is generally a code word for interests of the established rich, in particular the interest of \u2018getting richer<\/em>\u2019.\u00a0 In the context of an ever-widening equality gap, this often equates to the poor getting poorer.\u00a0 The \u2018economy<\/em>\u2019 is too often used by the political right in the \u2018Republican \/ Trump \/ trickle down\u2019 <\/em>sense of the word, to scaremonger and justify cruelty or lack of attention to the underprivileged.\u00a0 When striving for social justice therefore, it is very easy, and often justified, to disregard \u2018the economy<\/em>\u2019 as an irrelevant consideration.<\/p>\n

However, \u2018the economy<\/em>\u2019 in its ordinary sense means a lot more than this, and the Fair Work Commission are correct not to adopt this inflammatory or politically supercharged meaning.\u00a0 The meaning of \u2018economy<\/em>\u2019, in accordance with the Macquarie Dictionary is:<\/p>\n

……… 4.\u00a0 the management, or science of management, of the resources of a community, etc., with a view to productiveness and avoidance of waste:\u00a0(national economy). 5.\u00a0<\/em>the disposition or regulation of the parts or functions of any organic whole; an organised system or method…..<\/p><\/blockquote>\n

To this end, the \u2018economy<\/em>\u2019 is not merely the interests of the political right, or of those that own the \u2018means of production\u2019<\/em>.\u00a0 It is all of us.\u00a0 Our economy is the sum total of\u00a0our collective financial interests.\u00a0 This necessarily includes, and is sometimes little more than a collective appreciation for our individual financial interests. \u00a0The New South Wales Government, may not stand to lose that much from a 24-hour strike, but many people in Sydney do.<\/p>\n

To see an example of the potential economic effects of the Sydney rail industrial action, I had to go no further than my office\u2019s local station, at St Leonards.\u00a0 On Thursday, during the reduced timetable due to a union overtime ban, the food court was already deserted at lunch time.\u00a0 Most of these businesses are run by self-employed, small operators, paying high rents.\u00a0 The casual employees had been sent home, and the businesses were operating on skeleton staff.\u00a0 These self-employed operators, and their casual employees were out one day\u2019s pay, in a week when they had already lost one day\u2019s pay to the public holiday. If the strike had gone ahead, this would have been three consecutive business days\u2019 pay. \u00a0The knock-on effects are obvious.\u00a0 For some of these employees, this could be the rent that is due next week, food for their families, or the difference between buying their kids\u2019 new school shoes in time for the start of term.\u00a0 Or, perhaps trivial to some, it would mean merely missing out on the few, well deserved, beers they had planned to have on the Australia day weekend. \u00a0Further up the chain, this equates to less revenue for the grocery store, the shoe store, and the pub.<\/p>\n

\"RTBU\"<\/a>In many ways, it would be useful to adopt Lord Atkin\u2019s famous \u2018neighbour<\/em>\u2019 principle when we discuss the term \u2018economy<\/em>\u2019, rather than seeing it as only applying to the interests of the powerful or wealthy companies and individuals that appear to control the economy.\u00a0 When we do so, it takes on a different complexion.\u00a0 While the members of the RTBU may wish to forego a day\u2019s pay to secure a 6% rather than 2.7% increase, I don\u2019t see why the casual employees at the St Leonards food outlets, nor the self-employed operators, should do so, either voluntarily or otherwise.\u00a0 And these are only the first level \u2018economic effects\u2019<\/em> that are visible and obvious, before moving beyond one railway station. \u00a0When magnified to the entire network, and city, the exponential knock-on effects are obvious. When we assess the broader potential losses to those people relying on the rail network, or those relying on the roads, to make their income, or even just the loss of productivity to those business requiring their employees to attend work, the impact was potentially enormous.\u00a0 Clearly, this proposed strike was never about workers exercising leverage over an employer, it was about workers exercising leverage over an entire community, including other workers, many of whom have no security of income.\u00a0 John Classen, on behalf of the RBTU, issued a media statement on Thursday prior to the order encouraging employers to \u2018give their employees a day off on Monday<\/em>\u2019.\u00a0\u00a0 While to your average full-time office worker, the idea of extending the holiday weekend seems like a pretty neat idea in principle, the costs of this on the economy (in the \u2018neighbour<\/em>\u2019 sense of the word) would be astronomical.\u00a0 If this this is the union\u2019s genuine position on how the strike should have been handled by Sydney employers, it is very hard for the union to then argue that they were not cognisant of the effects of their proposed industrial action on the wider economy.\u00a0 This is the type of leverage expressly prohibited by the Fair Work Act 2009<\/em> (Cth), and there is nothing new about this. <\/p>\n

While the very existence of industrial action depends upon economic leverage, a just and balanced society needs mechanisms to determine what leverage is fair to the affected parties who are not involved directly in the specific employment relationship.\u00a0 While workers are entitled to cause or to threaten to cause some economic harm to their employer to forward their own interests (as shown in cases such as BHP Coal Pty Ltd v CFMEU<\/em> [2001] AIRC, 17 April 2001), we should stop short of allowing unions to leverage wider economic harm against their members’ own employment interests.<\/p>\n

I am grateful to the train drivers that get me to work every day, and I recognise that they have significant concerns over the way they have been treated. I genuinely hope they ultimately achieve their industrial goals.\u00a0 However, with respect, it just has to happen some other way. Contrary to what you might read on Facebook, the leverage that would have been caused by their proposed strike, has never been a leverage that they were entitled to exercise.<\/p>\n","protected":false},"excerpt":{"rendered":"

As an industrial lawyer, it was probably a mistake logging onto social media on Thursday, in the aftermath of the Fair Work Commission\u2019s order in relation to the RTBU strike proposed on the Sydney rail network.\u00a0 Social media in the modern political era is rarely a place for nuanced, informed or intelligent discussion.\u00a0 Rather, it […]<\/p>\n","protected":false},"author":1,"featured_media":860,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[236],"tags":[14,146,37],"_links":{"self":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/854"}],"collection":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=854"}],"version-history":[{"count":16,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/854\/revisions"}],"predecessor-version":[{"id":873,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/posts\/854\/revisions\/873"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=\/wp\/v2\/media\/860"}],"wp:attachment":[{"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=854"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=854"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/workn.net.au\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=854"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}