As industrial organiser Jerome Small once said: ‘I’m not a robot and I’m not a donkey, so I should be able to stop working when I choose to’. Sadly, going out on strike is all but outlawed in Australia, thanks to some of the most restrictive laws surrounding workplace action in any OECD nation. Strikes are down a staggering 97% from 1970s levels.

In order to remain within the law, workers can only apply for the permission to strike when they are negotiating for a new agreement with their employer (typically every three or four years) and even then, the strike application can be denied by Fair Work Australia if it’s deemed to have a damaging effect on the economy. Which surely is a potential feature of every effective strike in human history.

Last year, Sydney rail workers planned a strike that ticked all the legal boxes. They followed the letter of the law, yet Fair Work vetoed the plan, and the union followed their orders to avoid the risk of having to pay millions of dollars in fines. Individuals in some industries can now be fined up to $42,000 for striking.

Decisions such as the one that Fair Work took on this occasion can either have a chilling effect or galvanise people in opposition. So far, it’s been more the former than the latter.

Now it’s the Victorian Rail Tram and Bus Union’s turn. The union is currently negotiating a new agreement with their employer, Metro, which runs the privatised urban train network. In drafting their application, the workers and their union ticked every box, followed every process and procedure, but a court order put a stop to their plan to leave the ticket gates of stations open for one day in August as a bargaining tactic. Leaving the gates open would have meant the public’s transit would be uninterrupted throughout the workers’ action, while making the company take a financial hit.

The court order went further than just vetoing the tactic: it demanded that the union post notices at every station within twenty-four hours – this happened on a Saturday – in which they formally retracted their plans. The RTBU was also told to take out full-page ads in all the major newspapers the next day to announce that their action wasn’t going ahead. Since getting a full-page ad in every copy of the papers turned out to be an impossible ask, the union was found in breach of the court order. As a result, any industrial action taken would now be unlawful. The union could face millions of dollars in fines and potential deregistration if they continue in the face of the court’s decision. So they really do have to box clever.

There is a legal appeal moving slowly through the courts, and how this all shakes out remains to be seen. It may end up being a significant battle, and a considerably drawn out one. If workers and their unions continue to find that the legal pathways of resistance protected by the state are ineffective, then they will have to explore other avenues of organising, lest they continue along the road toward irrelevance and extinction. For context, less than 15 per cent of Australian workers belong to a union – in 1948, the figure was close to 65 per cent.

The RTBU held a mass meeting last week, which was well attended. Members voted to hold a rally and mass get-together at Flinders Street Station as the next step, while the case moves through the courts. The action will take place on this Thursday, 17 October, from 11:30 am. Workers and their union are encouraging members of the public to come along.

These are the workers who get us home every other day but, beyond that, the potential legal precedent in this case is extremely dangerous and could limit our right to ‘simply stop working’ even further.

Just about every social or political issue could be addressed more effectively through the involvement of organised workers. Looking back at the high-water marks of the history of Australian unions, you could speculate that if the movement were in a stronger position today, the trees at Djab Wurrung could be safer from destructive tools, with a restrictive Green Ban declared on the site. The School Strike 4 Climate would likely have seen even more extractive industries shut down on the day of international protest last month. The privatisation of the train network, and the commodification of almost every other aspect of our daily life, could be more effectively resisted.

In fact, it’s almost impossible to imagine everything we could achieve. This campaign by the RTBU is a vital next step on that road of imagining.

The author is a cartoonist and labour activist based in Melbourne. He is not employed by any trade union, and undertook to write this piece in a personal capacity.