Contributed by Adam Carlton

By ordering a stop to the Sydney rail strike and associated overtime ban, the Australian Fair Work Commission’s partisanship has been put out in bold relief.

This is not the first time that union members and supporters of unions generally have grumbled. There have been many instances, where one-sidedness has been shown. It is even more true in the case of the construction industry.

The Sydney Trains ruling has caused more anger than usual, because it is seen to mark an escalation of the unfairness locked into the system.

Since the invention of the Fair Work Commission, its ranks have been filled, by government friendly individuals, with a prior anti-union track record. This is bad enough for a body that is supposed to not take sides.  It is worse than this. The law under which it is set up and operates, is deliberately worded, to impose restrictions  and circumvent actions by unions. Employers and their organisations are not treated the same way.

Over the life of the Commission, there have always been limitation of what can be talked about, the protected industrial action conditions can be easily taken away at any moment, and the massive amount of red tape involved at every turn, imposes major hindrance and cost.

Collective action across individual workplaces and for unions to support each other is essentially illegal and there is no right of union representatives to enter the workplace and talk to members.

On top of all this, when the conditions are complied with, the goal posts are being constantly moved.

The Fair Work Commission was never going to work well for unions and their members, and some voices have all along been calling for defiance. The legacy has been a serious weakening of the union movement and the erosion of working conditions. This has been a major factor behind the stagnation of wages growth. How long can this persist, before there is a counter reaction, big enough to make a real difference?

Up to now, unions have basically accepted the rules and played along with the game. Even in the reality that the goal posts keep on changing, and over time the Fair Work Commission’s anti-unionism becomes even more pronounced.

When  deputy commissioner, Jonathan Hamberger, ordered the suspension of the Rail strike and overtime ban, he did so on the grounds that the industrial action was “threatening to endanger the welfare of part of the population” and “threatening to cause significant damage to the Australian economy or an important part of it”.

It follows another case, Monash University v National Tertiary Education Union, where  a full bench suspended protected industrial action, because a ban on submitting assessment results would be a threat to student health and welfare by heightening their stress and anxiety.

The decisions mark the evolution of Australia’s industrial relations system, towards outlawing any form of industrial action, protected or not. And Macolm Turnbull has recently promised that even more restrictions are in the pipeline.

For their longer-term survival, unions need to deliver to their members, and to do this, the only option is to defy unjust law. This is gaining greater currency. Unions need to be better in working together and supporting each other and to do this, the existing law must render the law ineffective.

Many civil libertarians tend to agree that the existing industrial law is a violation of a fundamental right in the workplace, to have a say, act collectively and be a member of a union without intimidation.

The dispute on the Waterfront just before Christmas showed that there are ways for unions to support each other and there has been more of this over the past year or so. Necessity has also developed community action and it has helped to draw wider community support for unions and achieved results.

The alternative to standing together and extending the base of support is to be picked off one by one.