
Issue No 78		17 November 2000

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Legal

Return Of The Lock-out

Marian Baird reports on the increasing tendency of aggressive employers to use lock-outs to reduce wages and conditions and promote individual agreements.

Have you noticed what seems to be happening to industrial disputes in the last few years? If you've been keeping a casual eye on the media you may have noticed an increase in the number of lock-outs that are reported. One of the most recent happened in the media itself, when the journalists at the Sydney and Melbourne offices of the Fairfax group were locked out of their offices by their employers. (Although, in retaliation, many had locked themselves in.)

What is a lock-out? Simply put, a lock-out is when an employer refuses the allow their employees on the premises and does not allow them to work. It is a form of industrial action taken by employers rather than workers. Under the Workplace Relations Act employees and employers have a limited right to take industrial action. Consequently, there is a right to lock-out employees under the Act. This can only lawfully occur when bargaining for a Certified Agreement (CA), or an Australian Workplace Agreement (AWA).

'Protected' Lock-outs

Lock-outs which take place during a bargaining period are regarded as 'protected' industrial action which means the action is free from civil liability for damages. Lockouts are only 'protected' if they occur during a properly notified bargaining period and there is a genuine attempt to reach agreement before the lock-out is imposed. In addition, three working days notice is to be given to each of the employees with whom the employer is negotiating. However, this notice is not required if the lock-out is a response to 'protected' industrial action (for example, a strike) by employees.

We can't be certain of the exact frequency or increase in the number of lock-outs around Australia because the statistics for industrial disputes are not categorised according to employee or employer action. So, at this stage we have to rely on anecdotal evidence and media reports. Nevertheless, the trend appears to be there. Let's look at some examples:

One of the most widely reported was the Patricks lock-out (and then dismissal) of 1400 waterside workers in April 1998. This decision was overturned by the High Court, but the reinstatement of the workers was put in the hands of the Administrators. As we know, it took a long time to settle. There have been many others since Patricks, most of which have not received the same attention.

Increasing Frequency

In December 1998, workers at the Australian Dyeing Company were locked out for two months in the course of enterprise bargaining. The workers eventually won this dispute; they gained a pay rise and kept their collective agreement. In June '99 drillers at the Pasminco zinc mine in Tasmania were locked out for refusing to accept a pay cut. In December '99 glass workers in Melbourne were locked-out for four months without pay for refusing to agree to reduced conditions in the new Enterprise Bargaining Agreement. In March 2000, there was a mass lock-out of unionised workers in the construction industry in Victoria in response to the unions claims for a shorter working week and increased pay. In the same month there was also a lock-out of workers at the Yallourn power station because they refused to accept new rosters and hours of work, which would have led to a cut in pay. In NSW, the workers at the Joy Mining Machinery Company in Moss Vale have been locked out for three months over pay and conditions in the new Enterprise Bargaining Agreement.

Finally, one of the longest running lock-outs in Australia's history was at the Packenham abattoir where the workers were locked-out for eight months because they refused to move to Australian Workplace Agreements or individual contracts. To keep their Enterprise Agreement they had to accept a pay cut of 17.5%. Both were unacceptable options. In this dispute, there had been no industrial action by the employees.

Exacerbating disputes

The common pattern in Australia seems to be a short strike over the terms and conditions offered by employers in the re-negotiation of the enterprise bargaining agreement. When the employees refuse to accept the employer's offer - which is invariably for a cut in pay and conditions - the strike is then followed by a lock-out. In some cases lock-outs are initiated by employers. Lock-outs are not resolving disputes, but exacerbating them. They often result in lengthy and protracted industrial disputes, and in this way, the pattern of enterprise bargaining is similar to US style contract bargaining. What do employers hope to achieve from the lock-out? Generally, they aim to force a reduction of wages and working conditions on employees, or as in the past, to break unions.

Sidney and Beatrice Webb, who wrote the History of Trade Unionism in 1894, noted that the lock-out was used as far back as the late 1700s by the master breeches-makers in an effort to restrict the power of labour. The Webbs also record that the lock-out was used extensively in the UK in the 1860s in an attempt to break growing union strength. It was applied across whole industries, for example coal mining and ship building, where unionism was growing in strength. Even employees who accepted the employers' terms and conditions were locked-out if they were suspected of being a union member or if they supported fellow workers on strike. We no longer wear breeches, and there aren't that many Australians employed in ship building or coal mining, but employers still use the lock-out, and with increasing frequency.

Employer motives

Why are they being used in Australia now? Clearly, employers sense their increase in power and they can more easily employ anti-union tactics. Lock-outs potentially result in individualised agreements, pay cuts and reductions in terms and conditions of employment. The breakdown of one of the twentieth century pillars of Australian life, that is, the Arbitration and Conciliation system is also responsible for the return of the lock-out. Justice Higgins argued in 1915 that conciliation and arbitration would provide a new 'province of law and order' to replace 'the rude and barbarous process of strike and lockout'. This was a response to the period of immense industrial disputation of the late 19th century - some of the Great Strikes were also major lock-outs. In the Australian industrial relations of the 21st century, there is a danger that the lock-out is being locked-in as a standard employer tactic in enterprise bargaining.

Marian Baird is a lecturer in Work & Organisational Studies, University of Sydney

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Issue 78 contents

Interview: Doubly Blessed
With that unforgettable name, Grace Grace is making her mark as the first female secretary of the Queensland trade union movement.

Unions: On The Line
Trade unions this week entered a landmark partnership with the call centre industry to improve the quality jobs in this growing sector.

History: Conspiracy or Class? The Whitlam Sacking
Never trust a man who wears a top hat and tails in Australia, in Summer. Neale Towart considers this and other evidence of conspiracy in the great shonky dismissal.

Legal: Return Of The Lock-out
Marian Baird reports on the increasing tendency of aggressive employers to use lock-outs to reduce wages and conditions and promote individual agreements.

Activists: Waterfront Hero Bows Out
John Coombs, the man the government compared to Ned Kelly - villain to the bosses, the big land owners and conservatives, folk hero to working Australians - bows out of the union movement next month.

International: Morocco Stonewalls In Western Sahara
Morocco has new king but its old game plan of defying world opinion over its occupation of the Western Sahara continues.

Review: The Identity-Shifting Pragmatist
If New Zealand should have an Australian as its first Labour Prime Minister, then it is only fitting that Australia should have as its first a man who spent much of his formative years across the ditch.

Satire: Hackers Infect Microsoft Computers With Mysterious Windows Virus
SEATTLE, Thursday: Shame-faced workers at Microsoft admitted today that hackers had succeeded in penetrating their network's defences and had installed a sophisticated virus on the Apple Macintosh machines used across the software giant's operations.

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