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Abstract The Australian Competition and Consumer Commission ('ACCC') is on the cusp of introducing a class exemption for collective bargaining for small businesses. This development is not just novel in [...]

I INTRODUCTION The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. (1) The formula for ascribing liability to workers [...], The hostility of the common law in respect of collective action by workers in the form of strikes is notorious. To provide workers with a right to strike, legislative intervention is necessary. In New Zealand and Australia, legislative enactment of the right to strike has taken the form of the "immunity approach" whereby strike action which meets the prerequisites for protection under the relevant statute receives immunity from common law action, while that which does not remains subject to potential liability at common law. This article analyses the adoption of the immunity approach in Australia under the relevant federal industrial relations statutes that have operated since 1993. Commencing with discussion of the hostility of the common law to collective action and the principle of legality, a presumption of statutory interpretation that presumes Parliament would not have abrogated common law rights without an express intention to do so, this article examines how the scope of protected industrial action in Australia has been consistently narrowed through hostile judicial interpretation. Such interpretation has been grounded in an approach which narrows the extent that common law rights are restricted by the statute and construes the statutory enactment of a right to strike as conferring a "privilege" on those industrial actors who remain "worthy" enough to access it. Considering the progressively negative impact on the right to strike of this approach, the argument in this article echoes calls made by Gordon Anderson in 1987 to reject the continued role of the common law in the regulation of industrial action. It is argued that the law of strikes in Australia should be codified. Such an approach should assist in downplaying judicial tendencies to interpret the right to strike as a privilege rather than as a necessary component of a functioning system of voluntary collective bargaining.

Contents I Introduction II Pre-Strike Ballots and Enterprise Bargaining Dynamics III Legislative Context IV Methodology V Findings A Ballots and Bargaining Power B Union Tactical Considerations C Internal Union Democracy [...], Under the model of enterprise bargaining enshrined in the Fair Work Act 2009 (Cth), the primary mechanism for employees to exercise industrial power during negotiations in respect of future wages and conditions is protected industrial action. Access to protected industrial action is contingent upon the employees and their bargaining representatives having complied with a series of statutory prerequisites. The most significant of these is the requirement to hold a pre-strike ballot of the relevant employees to authorise the proposed action. Without approval in a ballot, any industrial action undertaken will be unprotected, leaving the union open to liability under common law and statute, and its members potentially subject to dismissal from employment. This article explores the effect of pre-strike ballots on union decision-making and enterprise bargaining. Drawing on statistical analysis of a cross section of protected industrial action ballot applications made to the Fair Work Commission over a period of 12 months, and grounded theory analysis of interviews with ballot applicants, employer respondents and key stakeholders, this article evaluates whether the protected action ballot order regime in practice provides a 'fair, effective and simple' mechanism for ascertaining employee support for industrial action, as suggested when the provisions were first introduced. The discussion explores how the introduction of pre-strike ballots has created new opportunities for unions to exert pressure in collective bargaining but at a considerable cost in terms of the use of union resources and in providing opportunities for employers to delay access to industrial action. It also considers whether there is a better process for allowing union members to indicate their support for industrial action, in order to remove the administrative burden imposed on the Fair Work Commission, employers and unions by the existing model of pre-strike ballot regulation.

Abstract In Esso v A WU, the High Court of Australia will consider two important issues concerning the capacity of employees and their representatives (unions) to take protected industrial action [...]

Abstract In 1991, the Sydney Law Review commenced publishing a column discussing cases due to be heard by the High Court of Australia. On the 25th anniversary of the Before [...]

Labour laws are designed in part to provide workers with adequate minimum labour standards, including access to collective voice and representation in establishing working conditions. They generally focus on employees' [...]

The author discusses the pros and cons of Australia's proposed Workplace Relations Amendment (Australian Workplace Agreements Procedures) Bill 2000 and its effects on collective labor agreements.