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There is no “independent umpire”: we fight or we lose!

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Nick G.

The decision by the Fair Work Commission (FWC) to order NSW rail workers to abandon a 24-hour strike on the NSW train network on Monday 22 January, is an attack on workers everywhere.

The ruling effectively says that if industrial action is likely to inconvenience anyone, or cause losses to the economy, then it can be made illegal.

The workers, members of the Rail, But and Tram Union (RBTU), were also required to lift an indefinite ban on overtime from 6pm on Thursday.

The FWC stated that both the strike and the overtime ban "threaten to endanger the welfare of part of the population".  Deputy President of the FWC, Jonathon Hamberger also said that the actions threatened "to cause significant damage to the economy of Sydney - the largest and most economically important city in Australia".

The “inconvenience” line can be applied equally to any public-sector workers – teachers, firies, cops, nurses and others – while “damage to the economy” is a complete catch-all for workers in both public and private sectors.

Torts and the Bosses’ Courts

The use of “torts” (a legal term for damages, especially to a third party) against workers came in the wake of the defeat of penal powers embedded in industrial law.  For many years, heavy penalties had been imposed on unions when they ran afoul of the Arbitration Commission.  Comrade Clarrie O’Shea went to jail in 1969 rather than pay any more of his members’ money to the bosses’ courts. He was widely supported by workers in what was effectively a general strike, and the bosses backed down and lost the ability to impose fines through industrial law.

With the penal powers defeated, the bosses reassessed their tactics and decided to use the civil courts to break union activity.  This meant applying the law of torts to the effects of strike action. The South Australian branch of the Builders Labourers’ Federation (BLF) and its State Secretary Comrade Les Robinson faced writs for civil damages during an industrial dispute in 1970, and again in 1972 when Les and Comrade Ron Owens of the SA Branch, BLF, were jailed for 8 days.

Marxist historian Humphrey McQueen correctly assessed the failure by unions and the ALP to support Robinson and Owens: “Robinson and Owens had spent longer in gaol than Clarrie O’Shea. Only their own members in their own State had struck in their support, though the ABLF was planning a national stoppage for the week after their release. The lac of action opened the door to a strategic defeat for the labour movement. What began as a try-on around Adelaide set a battleplan to disorganise labour. The use of the Trade Practices Act erupted at the Mudginberri meat works in 1983-5. The full force of the corporations power in the Australian constitution hit with WorkChoices and FairWork Australia” (McQueen, We Built This Country, 2011, p 226).

In short: if you don’t fight, you lose.

What “independent umpire”?

RBTU NSW state secretary Alex Claassens did his members a disservice when said he accepted the decision of the “independent umpire”.  In a class society, no court can sit outside of the influence of class.  No court can be abstracted from the class context in which its operating principles – the laws by which it processes disputes –  are formulated. At best this nonsense of “independence” refers to the fact that the courts are not under the direct orders of this or that political party.  They do not need to be.  They are completely embedded, ideologically, in the perspective of the permanence of capitalism and its relations of production. Even when members of the courts (in this case the Fair Work Australia Commission) are appointed from a union or small “l” liberal background, they merely hang like baubles, like useless decorations on a Christmas Tree rooted firmly in the soil of class exploitation.

ACTU must lead with actions, not words

The Australian Council of Trade Unions (ACTU) said the FWC decision is “further evidence of the broken rules in Australian workplaces that are driving down wage growth.”

It noted that the right to withdraw labour “is a fundamental human right, that is denied to most Australian workers, most of the time.”

Sally McManus, ACTU Secretary, said “The basic right to strike in Australia is very nearly dead.

“Rail workers followed every single rule and law, and still the Minister of the day can get an order to cancel bans on working excessive overtime.

“When working people and their union go through every possible hoop and hurdle and are still denied these basic rights, it is no secret why so many workers haven’t had a pay rise.

“Working people’s wages in Australia are so stagnant because the rules are stacked in the favour of the employers.

“We need to change the rules, because Australia needs a pay rise.”

These are all good words, but, like the failure to call workers to act in support of Robinson and Owens in 1972, the failure to call workers to act to challenge these bad laws will only ensure their continued use against us.

As Humphrey McQueen said following the FWC decision, with the wisdom of an historian of the working class, “Our ‘right’ to strike has never been handed down from on high. Never will it be. Our right to strike is a precious gift which we win and hold for each other by putting it into practice.”

We are not calling for isolated, spur-of-the-moment and easily defeated adventurist actions, but rather for a genuine commitment to planning and organising acts of defiance for a reassertion of our industrial rights as part of an independent working class agenda, an agenda set by us and served up to Liberal and Labor alike, without fear or favour.

Our own agenda is the only “independence” we believe in.

And we start to fight or we continue to lose!


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