Strike or strike out : an analysis of Australian compliance with international standards on the right to strike

Australia, as a signatory to United Nations and International Labour Organisation Conventions on the Principle of Freedom of Association, is obligated in international law to implement a right to strike. The express and implicit right to strike within these instruments operates as a functional aspect of the principle of freedom of association and is an integral component of the normative ILO model of voluntary collective bargaining. The thesis examines the voluntarily assumed international obligations binding Australia with respect to the right to strike, identifying the exact nature of the obligation undertaken in international law, and measures the degree to which the federal regulatory model complies. Particular attention is paid to the model of protected action within the Workplace Relations Act 1996 (Cth) (WRA). The measurement of the compliance by the federal legal framework is undertaken through examination of the legal framework of voluntary collective bargaining and its practical impact. The discussion measures compliance on the basis of the specific standards enunciated by international agencies, and on the basis of the appropriate role of strike action in a normative model of voluntary collective bargaining based on the principle of freedom of association. The thesis concludes that the federal model of voluntary collective bargaining instituted under the WRA fails to comply with international standards on the right to strike from a global perspective, but achieves a degree of compliance on the specific level of the WRA protected action regime. There is no right to strike in Australian law for a wide variety of strike action that is encompassed by the principle of freedom of association in international standards. Where a right to strike is provided in the context of protected action, the right is compliant in form but not in substance. The failure of the model to comply in substance stems from the differing approaches taken in international and Australian law to the. principle of freedom of association and the role of strike action within voluntary collective bargaining. International standards encompass strike action as an aspect of a functional freedom of association designed to operate as a tool of bargaining. Non compliance in Australia stems from an approach to strike action that separates strike and freedom of association, using strike to facilitate predetermined bargaining outcomes rather than accommodating choice in bargaining processes.