The Fair Work Act 2009 (Cth) and the Right to Strike

Australian Journal of Labour Law, Vol. 23, No. 1, pp. 3-38, 2010

Sydney Law School Research Paper No. 10/18

38 Pages Posted: 3 Feb 2010  

Shae McCrystal

The University of Sydney Law School

Date Written: February 2, 2010

Abstract

This article examines the industrial action provisions of the Fair Work Act 2009 (Cth) in the context of international labour standards which protect the right to strike, particularly the International Labour Organisations’ Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87). The article reviews the Act in light of three central obligations with respect to the right to strike imposed under international standards: protection of the right of workers’ to take strike action in support of their economic and social interests; ensuring that the right to strike is not hindered in practice and providing for legal responses to illegitimate strike action that are measured and proportionate. The article concludes that there are substantial areas in which the Act fails to comply with these international obligations and that these failings stem from a broader reluctance by successive governments to respect the autonomy of industrial actors in collective bargaining.

Keywords: Right to Strike, Fair Work Act 2009, Freedom of Association, Protected Industrial Action, International Labour Organisation

JEL Classification: K10, K30, K31

Suggested Citation

McCrystal, Shae, The Fair Work Act 2009 (Cth) and the Right to Strike (February 2, 2010). Australian Journal of Labour Law, Vol. 23, No. 1, pp. 3-38, 2010; Sydney Law School Research Paper No. 10/18. Available at SSRN: https://ssrn.com/abstract=1546845.

Shae McCrystal (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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