Reflections on the Australian Pre-Strike Ballot Model

This concluding chapter considers how Australian pre-strike ballot requirements reflect the explicit (furthering industrial democracy) and implicit (inhibiting strike action) objectives that underpinned their introduction. After summarizing the practical operation and impact of the statutory requirements, the chapter describes stakeholder perceptions of the system in practice and in principle, and their views as to how it should be reformed. In conclusion, the chapter suggests the removal of the requirement under the Fair Work Act 2009 (Cth) for a union to apply to an industrial tribunal for permission to run a ballot. It advocates the replacement of the current complex model with a requirement that union rules contain provision for a ballot of members as a pre-condition of taking strike action, with the lawfulness of any subsequent strike being conditional upon being approved in such a ballot and subject to challenge only by the members of that union. So far as union members are concerned, this would do little more than accord formal recognition to the non-legislated democratic processes that are already the norm in Australian unions, but it would at least provide a basis for meaningful, democratic decision-making in relation to taking strike action. As such it would constitute a welcome repudiation of what the chapter describes as the hypocritical posturing that underpins current legislation in Australia (and the United Kingdom) which uses the rhetoric of democracy to deprive workers of their democratic right to take strike action to protect and to promote their legitimate social and economic interests.

Democratic Rationales for Pre-Strike Ballots

Chapter 7 interrogates the central issue in the book—the extent to which pre-strike ballot requirements give effect to the democratic rights of individual workers and the public interest in ensuring that the exercise of strike action is based on democratic decision-making. It argues that pre-strike ballot requirements are imposed on trade unions in a very different context when compared with other forms of political or industrial contests. The chapter analyses unions’ democratic processes in three interrelated, but different, key decisions in the process to take strike action under the Fair Work Act 2009 (Cth): (i) the decision to apply for an order for a pre-strike ballot to be held; (ii) the decision to approve proposed industrial action in a pre-strike ballot; and (iii) the decision to take approved industrial action after such action has been approved in a pre-strike ballot. Each of these decisions occurs within the context of the legal and industrial relations framework, and the democratic processes involved are inevitably shaped by those frameworks. The evidence presented in this chapter suggests that the first and third decisions are generally conducted in a manner that allows for participatory democratic processes. However, when union members vote in a pre-strike ballot, there is little evidence of the kinds of practices that typically characterize a participatory democratic model. Instead, union engagement with members is focused on educating them about the legal requirements and the consequences of abstention or a no vote in associated bargaining, rather than on the arguments for and against the proposed industrial action.

Bargaining Leverage and Stakeholder Perceptions

Chapter 6 examines the ways in which pre-strike ballot requirements provide bargaining leverage to unions and, to a lesser extent, employers. The chapter’s analysis of internal union processes and bargaining dynamics suggests that the pre-strike ballot process can provide unions with some benefits, or advantages, in the enterprise bargaining process. First, the process of seeking permission to run a ballot, and the conduct of a subsequent ballot, can increase leverage by escalating the ‘threat’ of industrial action without necessarily having to take the approved action. Second, the pre-strike ballot process can benefit unions by providing an opportunity to engage existing members in the bargaining campaign, and/or recruit new members. There can, however, be adverse consequences for unions—an unsuccessful ballot outcome can severely compromise the union’s credibility; provide evidence of a weak bargaining position; significantly reduce the likelihood of industrial action occurring; favour the employer in the negotiating process; delay the taking of industrial action; or even entirely derail the union campaign. In order to maximize the strategic ‘benefit’ of a pre-strike ballot, unions generally need to invest considerable time and resources to ensure that enough members vote, and vote favourably, in the ballot. Some employers use these processes to their advantage—by, for example, using the time between the application to conduct a pre-strike ballot and the actual ballot actively to try to discourage support for industrial action; trying to disrupt the momentum of the union’s campaign; or exploiting opportunities to oppose applications for pre-strike ballots.

Pre-Strike Ballot Regulation in Australia

Chapter 4 provides a detailed description and explanation of the Australian pre-strike ballot provisions, and includes the history and development of the provisions, and a detailed description of their operation in practice. The chapter describes how a pre-strike ballot application is made, the process that the industrial tribunal, Fair Work Commission, must—and does—follow in considering the application, and the role that that affected employers can play in the process. In includes details of the number of applications made annually, the forms of strike action included in applications, and the outcomes of ballot applications (almost all ballot applications are approved). It then examines the ballot process—including the mode of ballot (secret), who conducts ballots (almost invariably the Australian Electoral Commission), the voting method, the rate of voter turnout, the time interval between the lodging of the pre-strike ballot application and the declaration of the ballot result, ballot results, the process of deciding whether or not strike action will actually be taken, and whether enterprise bargain negotiations resulted in an enterprise agreement being approved by the Fair Work Commission. The chapter concludes by arguing that the Australian pre-strike ballot provisions are overelaborate, and that they need to be examined in their totality in order properly to understand how they operate, and their impact on industrial relations processes.

The Right to Strike and Pre-Strike Ballot Requirements in International Law

The book is underpinned by the assumption that the right to strike to promote or to protect the individual’s economic and social interests is a universally recognized human right, either standing on its own, or as part of the principle of freedom of association. This is reflected in the fact that the right to strike is, directly or indirectly, afforded protection by major international standard-setting instruments, and in the constitutions of many nation states. This chapter outlines the international recognition of the right to strike, with particular reference to the jurisprudence of the supervisory bodies of the International Labour Organisation. This includes consideration of the extent to which access to the right to strike can properly be conditioned by pre-requisites such as pre-strike ballot requirements.

Strikes, Ballots, Law, and Democracy

This chapter examines the nature and purposes of strike action. It suggests that strikes are a means of protecting and promoting the social and economic interests of workers—especially in the context of collective bargaining. It provides an historical outline of the relationship between strikes and the law by tracing the transition from repression of union organization, and more specifically the capacity to take strike action, through toleration to recognition, and recently back to reluctant toleration. The chapter also notes that the capacity to take strike action is almost always limited in one or more ways, including restrictions on the organizations and/or individuals that can lawfully take strike action, the forms of strike action that can legitimately be taken, the matters in relation to which strike action may be taken, and the procedural requirements for lawful strike action. A very common procedural constraint is a requirement that proposed strike action be authorized by a pre-strike ballot. Chapter 1 introduces the usual ostensible rationale for pre-strike ballots—the need to protect the democratic rights of individuals: the so-called ‘democratic imperative’. It also uses two case studies to introduce important theoretical and practical issues raised by the use of pre-strike ballots.

Pre-Strike Ballots in Comparative Perspective

Chapter 3 contains a comparative review of pre-strike ballot requirements, describing the principal forms adopted around the world. It demonstrates that pre-strike ballot requirements can range from ‘light touch’ regulation specifying that union rules must contain provisions requiring the conduct of pre-strike ballots but attaching almost no consequence to failure to do so, through to highly prescriptive requirements which can have the effect of making it exceedingly difficult lawfully to take strike action. Chapter 3 then examines in detail the pre-strike ballot requirements that have been adopted in four jurisdictions: the United States, where there are no formal pre-strike ballot requirements; South Africa, where formerly stringent ballot requirements were replaced by light touch regulation in 1995; Canada, where there are formal requirements for the conduct of pre-strike ballots, but where they appear to be of only very marginal inconvenience to trade unions; and the United Kingdom which has adopted exceedingly complex provisions which betoken an almost obsessive desire to regulate the circumstances and manner in which strike action can lawfully be taken. The chapter also points to the case of Australia, which has adopted an approach that is, in many respects, similar to that of the United Kingdom—albeit with some significant differences. The similarities are such that the detailed study of the operation of the Australian provision affords many insights into the operation of the British provisions, and into the role of law as a means of regulating industrial behaviour more generally.

The Impact of Ballot Requirements on Organizing and Taking Strike Action

Chapter 5 examines the impact of the pre-strike ballot requirements on the capacity of trade unions to organize and take strike action. It argues that even though the legislative requirements for a pre-strike ballot appear to be neutral, they are not always neutral in practice. The analysis in the chapter demonstrates that, in practice, the combined effect of the pre-strike ballot provisions under the Fair Work Act 2009 is to inhibit the capacity of unions to organize industrial action, and to impede their capacity to use industrial action in the most strategically effective manner. In particular, the chapter explains how the processes in which employers oppose, or threaten to oppose, applications to run pre-strike ballots can delay the application, or extract concessions from the union applicant. The quorum requirement that 50 per cent of eligible members vote, and that 50 per cent of those vote affirmatively impedes access to protected strike action, more so for postal votes than for attendance votes—and in practice the system provides positive incentives to use postal votes rather than attendance votes, and electronic balloting is rarely used. The system places significant administrative burdens on unions to comply with the rules and to ensure that they meet quorum, and a rule that industrial action must commence within thirty days of the declaration of the ballot result can trip up unions and result in their losing the capacity to engage in industrial action.