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


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McCrystal, Shae 2005 , 'Strike or strike out : an analysis of Australian compliance with international standards on the right to strike', PhD thesis, University of Tasmania.

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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
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.

Item Type: Thesis - PhD
Authors/Creators:McCrystal, Shae
Keywords: Strikes and lockouts, Labor disputes, Industrial relations
Copyright Holders: The Author
Copyright Information:

Copyright 2005 the Author - The University is continuing to endeavour to trace the copyright
owner(s) and in the meantime this item has been reproduced here in good faith. We
would be pleased to hear from the copyright owner(s).

Additional Information:

Available for library use only and limited copying in accordance with the Copyright Act 1968. Thesis (Ph.D.)--University of Tasmania, 2005. Includes bibliographical references

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