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Is the Government influenced by international treaty obligations in deregulating the labour market?

KEVIN HUME: Deregulating the labour market - how far does Prime Minister Keating intend to go and how far is he being pushed, curiously, by our international treaty obligations. Well, that's a question being addressed today in Sydney at a conference held by the Australian Centre for Industrial Relations Research and Teaching. Dealing with those questions - Breen Creighton, Professor of Legal Studies at La Trobe University.

Professor Creighton, let's start off with the basics, I guess. What rights do Aussie workers lack by international covenants, and what exactly are they missing out on?

BREEN CREIGHTON: Well, one of the areas where the International Labour Organisation has identified a shortcoming is in relation to the right to strike. And on a number of occasions in 1989, 1991 and, one suspects, again this year, one of the ILO committees which deals with the supervision of international conventions has said that the law in Australia is in breach of international standards relating to the right to strike, first of all, because sections 45 (d) and (e) of the Trade Practices Act make unlawful certain forms of industrial action which they think ought to be lawful; secondly, because of the complete lack of protection against common law liability for industrial action. Essentially, you can't take industrial action in Australia and not be acting unlawfully at common law. And the third area where they've identified a problem is in relation to essential services legislation.

Now, the ILO doesn't say that you can't have essential services legislation but they do seek to impose certain restrictions on its scope, and they've said that, in various respects, essential services legislation in Australia goes too far. So there are quite a few fairly significant problems, I think.

KEVIN HUME: Well, are they significant? Do they matter? Unions have carried on and have gone on strike regardless, it would seem, over the years. Does it really matter?

BREEN CREIGHTON: Well, I think - first of all, it matters, because the international community has recognised the right to strike as a fundamental human right, and I don't think that a country that purports to stand for the values of liberal democracy should maintain a legal system that is inconsistent with that fundamental right - I mean, that's at the level of principle. But I think at the practical level, as well, there have been a significant number of cases - not a vast number of cases but a significant number - where the law has been used to prevent people or to punish people for taking industrial action which, on any reasonable definition, they ought to have been able to take.

Let it be said, it has also been used in situations where, on any rational regime, it was appropriate that legal sanctions be imposed. I mean, that's not to say that there isn't some role for legal sanctions but it certainly has been used in the past in some circumstances where, in international terms, it ought not.

But I think that the most significant practical issue is that if we are moving towards an enterprise bargaining environment, a more overtly collective bargaining kind of industrial relations system, then the right of workers to withdraw their labour as part of that process becomes a very significant practical issue in a way that it's not in a situation which is more oriented towards compulsory arbitration. Because if you've always been able to make an argument to the effect that if workers and their unions have access to a system of compulsory conciliation and arbitration, then the need to resort to industrial action should be that much less.

Indeed, the founding fathers of the conciliation and arbitration system thought that it should completely displace the strike and the lock-out, but if you're moving away from - that was unrealistic and simplistic I think - but nevertheless, there was something in it. There was some force to that view that if you have that kind of system you don't need to have the same kind of recourse to strikes and lock-outs as you do in a true collective bargaining system. So if we're moving towards a true collective bargaining system, then I think as a matter of logic and as a matter of fairness, workers must have the right, without fear of legal penalty, to withdraw their labour in certain circumstances.

KEVIN HUME: Try and tell that, though, to either the employers who fought this sort of freeing up and the right to strike considerably over a period of time, and to the Coalition, for that matter, as well.

BREEN CREIGHTON: Well, I mean - I don't think that the response of the major employer bodies in this area is particularly rational. I don't think it's particularly consistent. I mean, it's not for me to speculate as to why they take such a narrow view, publicly, at least. I suspect that some employer representatives privately would acknowledge that one really can't, in an enterprise bargaining, collective bargaining environment, seek to maintain the existing sanctions provisions on touch.

But there's also, I think, a very considerable element of double standards in operation. I mean, if you consider the ACCI - the CAI as it used to be - they presented a complaint to the ILO complaining about the ten thousand membership requirement for registration of Federal unions and for continued registration of Federal unions. That complaint was upheld and the ACCI demands legislation to give effect to that decision. And indeed, the previous Minister for Industrial Relations indicated that the Government would legislate to give effect to that decision.

Well, that's fine. The decision is there. I have my own views as to whether it's a well-founded decision but the fact is, it is there. The relevant committee has very clearly said that Australian law is in breach and I think it's right and proper that we should legislate to give effect to that decision. But if we do that, then I think we should also - and I think the employer organisations ought to recognise that we need to give effect to the ILO decisions on the right to strike, which have been very clear and consistent over a period of years.

KEVIN HUME: Breen Creighton, thank you for joining us. Professor Breen Creighton who is Professor of Legal Studies at La Trobe University.