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Ireland's political and cultural magazine
— October – November 2013
I
T is possible that the employers’ assessment is that is just one
battle in an ongoing struggle and that it is best not to get too carried
away with the one victory, a small step to employer ascendancy Are
they right? Is and the lockout itself a thing of the past asks
Niall Crowley, commissioning editor of this Lockout series.
Tis something strange about our Lockout commemorations. President
Michael D Higgins is doing his best but it all seems a bit less than official.
To date it has largely been a celebration of trade unionism. Yet, as a coun-
try, while not hostile, we don’t really seem to be that enthusiastic about
trade unions.
We stand out in Europe in that employers do not have to negotiate
with trade unions. There is no right to collective bargaining. Workers
have the right to join a trade union but employers do not have to recog-
nise that union. This is in breach of International Labout Organisation
conventions.
Despite this, Dublin sports a dramatic statue of James Larkin urging
us off our knees. A new and rather functional bridge has been named after
Rosie Hackett, a trade union leader and activist in the lockout. Gratifyingly
for those on the left,William Martin Murphy remains uncelebrated except
for a golf competition named after him in Milltown golf club.
William Martin Murphy led the employers in the Dublin lockout. He
was an international businessman. He had been involved in railway con-
struction in Africa, South America and Europe. He was one of the largest
employers in Ireland where he owned a retail store, a hotel, the tramway
company in Dublin and the Irish Independent and Evening Herald.
Employers have notably not honoured a renowned entrepreneur
who fought what they presumably see as the good fight. Maybe there are
discrete toasts to his memory in the boardroom. But there is no public
triumphalism. A plaque on a small farmhouse in the Beara peninsula con-
stitutes the full sum of public recognition this centenary year.
Murphy uncelebrated
NEWS
SPECIAL
1913 Lockout
The elusive Mr Murphy
T
HE fifth global solidar-
ity summer school of the
Irish Congress of Trade
Unions was dedicated to
the lockout. In his paper on
the challenges facing global trade
unionism, Alex Bukarica, Legal
and Industrial Director, CFMEU,
Australia, here identifies that
the lockout tactic has re-emerged
and analysed the conditions for its
re-emergence.
The term ‘lockout’ describes the employer industrial tactic of refusing
the labour of its employees until they are prepared to accept the demands
of the employer. In Australian law, this conception of lockout involves a
suspension of many of the key elements of the contract of employment
(most notably the obligation on the employer to pay wages and to provide
work), but does not involve the termination of the employment relation-
ship. This type of lockout is legal and is enshrined in Australia’s principal
industrial law, the Fair Work Act , as a legitimate employer ‘response
action’ in an industrial bargaining context.
Over the last two decades, the ‘legal’ employer lockout has become a
more common feature of the industrial landscape in Australia after almost
a century of being regarded as an essentially illegitimate or ‘barbarous’ tool.
This re-emergence was driven by a conscious Commonwealth Government
policy to move from a centralised, arbitration-driven wages system, to one
of enterprise-based collective bargaining based on the North American
model. The logic of this new system required that the
parties to bargaining be able lawfully to exert economic
pressure on each to obtain agreement in the absence of an
arbitral third party that could impose an outcome.
The coal mining industry in Australia employs approx-
imately , employees and is largely concentrated
in the states of New South Wales and Queensland. A few
very, large multinational mining companies dominate
the mines. Industrial relations between the major mining
companies and the biggest union representing coal miners,
the CFMEU, are generally fraught, if not downright hos-
tile. Whilst union membership density in the coal mining
industry is quite high by general community standards,
since the mid-s there have been concerted efforts
by the major coal mining companies to break the power of
the CFMEU and to introduce individualised employment
relationships in their operations.
One fairly recent example of a major lockout involved
the global mining giant Glencore-Xstrata and CFMEU
members at the Tahmoor underground coal mine in New South Wales.
Tahmoor had, until , been operated by a mid-size, domestically-
orientated mining company. With Xstrata taking over the operation of
the mine, a new approach became immediately apparent. The new man-
agement took a far harder line against the highly-unionised (though
historically not industrially-militant) workforce.
With the expiry of the existing enterprise agreement in late , the
incoming management made it clear to the local union negotiators that
it expected a new and ‘modern’ collective agreement at the mine. The
term ‘modern agreement’ in this context was a euphemism for a stripped-
down agreement that would confer a free hand to the employer in any area
related to production or the organisation of work.
The industrial dispute that emerged at Tahmoor became one of the
most bitter and protracted in the history of the New South Wales coal-
mining industry, involving almost daily industrial action from late
until late . On August , Xstrata implemented a lockout of
employees at the Tahmoor mine.
The initial lockout notice stated that the lockout would be for three
weeks. However, mine management openly told employees that they would
receive further notices of lockout until they acceded to the company claims
or, alternatively, Xstrata’s application to terminate the existing collective
agreement was granted by the industrial tribunal. Fortunately, in a decision
dated August , the Fair Work Commission refused the applica-
tion to terminate the
agreement, finding
that the applica-
tion was primarily
an attempt to bol-
ster the bargaining
position of the com-
pany, rendering to it
by litigation what it
could not achieve by
negotiation.
The Tahmoor
lockout came to an
end after ten days
when the CFMEU
made an applica-
tion to terminate
it because of the”significant economic harm” the lockout was causing
employees. Whilst the application was objectively unlikely to pass the
necessary jurisdictional threshold, it had the desired effect of causing
Xstrata immediately to withdraw its lockout notice. This was because the
company realised that in the event that the bargaining claims proceeded
to arbitration, the unreasonableness of the company position on certain
bargaining items would result in the industrial tribunal favour-
ing the union position.
The Tahmoor industrial dispute concluded with an agreement
that on balance favoured the employer position on managerial
prerogative – while continuing a number of historic protections
for employees. However, the cost to the company in achieving this
‘victory’ was very significant. The company may have lost as much
as Au$ million in lost production. The employees, for their
part, suffered an effective pay freeze from until late ,
and lost wages as a result of the industrial action.
The employer lockout is a naked expression of power that
has re-emerged in Australia after decades of community and
legal disapproval. Because it is such a dramatic act, its use is the
Australian mining and energy industries seems to be confined to
disputes that are fundamentally about power in the workplace.
The area in which this power struggle manifests is in the self-
declared sphere of ‘managerial prerogative’ asserted by some of
the most powerful corporate entities in the world.
The practical experience in the Australian mining and energy
industries is that there is no failsafe way to protect against the adverse
effects of the employer lockout. The solution certainly does not reside
in the legal system. The main moderating effect on the use of employer
lockouts in the Australian mining and energy industries appears to be
a realisation on the part of these global corporate giants that employee
capitulation will not come quickly, cheaply – or, it is possible, at all.
NEWS
SPECIAL
1913 Lockout
Lockout is
enshrined in
Australia’s
principal
industrial
law, the Fair
Work Act
2009’
“
Energy Australia has locked out electricity plant operators n
Victoria’s Latrobe Valley since June 21, amid a long-standing
dispute over a new enterprise agreement
Australia, where
lockouts never
went away
— October – November 2013
A
HUNDRED years ago workers would desperately wait at the
docks or at labour fairs to be selected for a job. Some employ-
ers in would encourage the dockers to spend money in
their employer’s pub after being paid. If the workers didn’t
comply they wouldn’t be chosen for work the next day. A hundred years
on and such insidious tactics are still prevalent, writes Brian Forbes,
National Coordinator for Organising, Campaigns and Recruitment in
Mandate trade union.
Low-hours contracts of employment are increasingly the norm in the
Irish retail sector, though many employees in fact work far more than
the hours stated in their contracts. If they do not do what the employer
wants they can be limited to their contractual hours. This is the control-
ling tactic that many employers use to stifle trade-union activity and to
help create an increasingly subservient workforce.
Another power mechanism used by employers is to withhold the post-
ing of rosters until the last possible moment so that workers are unaware
of their hours of work from week to week. They become virtual hostages
to the employer and cannot secure additional employment due to the
uncertainty of their working week. Some employers spread low-hours
contracts over four or five working days. This prevents employees from
claiming social-welfare assistance, keeping them hungry to get hours,
and flexible to the needs of the business.
Labour-market security is increasingly eroded by demands for greater
flexibility. In straitened times once decent work is being replaced by pre-
carious working arrangements. OECD statistics show we are the sixth
most flexible labour market in a comparison of forty two countries. Recent
CSO data show that the share of involuntary part-time working is grow-
ing with over , workers classified as underemployed. This is a
staggering % increase on figures and is the highest in the EU.
The National Employment Survey shows that workers in retail are the
second lowest paid in Ireland and recent Eurostat labour cost analysis
shows Irish labour costs at .% below the average of the other
Euro-area countries.
Closure is another feature of the precarious nature of work in the retail
sector. Companies such as La Senza, HMV and Laura Ashley close their
outlets with almost complete impunity given the weak legislation that
exists. Some profitable companies decide to use the opportunity to rene-
gotiate their rent and use the workers as cannon fodder in the process.
Companies limited by guarantee are increasingly using “tactical insolven-
cies” and abusing the limited liability system to suit their own ends.
Employers who refuse to pay outstanding wages or awards made by
employment rights bodies, as in the long-running Connolly Shoes dis-
pute in Dun Laoghaire, can construct their company so as to avoid having
to pay their workers what is owed to them. This is further exacerbated
when these employers use outstanding monies owed to workers to con-
tinue their business, conveniently trading under a different name and
sometimes even using the very same premises.
Workers have had to occupy premises to get what is owed to them
- sometimes for months as with the Vita Cortex workers. Some employ-
ers fail properly to wind up the company, subverting the Department of
Social Protection Insolvency Payment Scheme and perpetrating a dou-
ble injustice on workers.
Finally, we remain one of the few countries in the developed world
(one of three in the EU) where workers are denied the basic human right
to be a member of and to be represented by a trade union for collective-
bargaining purposes. A campaign (www.fairshop.ie) is running in the
Irish retail sector to challenge this by positively acknowledging employ-
ers that do collectively bargain with trade unions.
Until we legislate to redress the current imbalances the shade of
William Martin Murphy will remain with us.
Controlling the workers
NEWS
SPECIAL
1913 Lockout
