On Thursday (25/1/18) the Australian Fair Work Commission found the planned 24 hour strike and a ban on overtime by the Rail, Tram and Bus Union to be 'unlawful'. The decision to take strike action came after a lengthy period of negotiation with the employer in support of a pay and conditions claim, had failed to deliver an acceptable outcome.

Given the disturbing stagnation in workers’ wages in recent years, NSWCCL accepts that the Union's claim is justified and that this dispute will continue until satisfactorily resolved.  Our main civil liberties concern is, however, the apparent broader implication of the judgement. 

On face value-noting that more detailed reasons for the decision are yet to come from the Commission – the terms of the judgement appear to render future lawful strike action relating to major service delivery almost impossible.

The Commission found that the overtime ban and the proposed strike, separately and together, ‘threatens to endanger the welfare of a part of the population’ and ‘the industrial action threatens to cause significant damage to the economy of Sydney – the largest and most economically important city in Australia.’

The Commission’s ban is in force for 6 weeks. Hopefully in that period the Government might be more open to responding fairly to the Union’s claims. Otherwise, it is difficult to see – given the wording of the decision – that any future proposed strike by the union at a later date could be deemed lawful.  (Or overtime ban, given that the actions were deemed separately certain to cause the specified harms).

The right to strike is a fundamental civil liberty and human right. This decision imposes unacceptable restrictions on the right of workers to withhold their labour to negotiate terms and conditions of their employment, without an agreement of just terms between the parties.

If the Fair Work Act allows this finding it should be amended. 

NSWCCL has issued a public statement expressing its concern in relation to this decision.