In keeping with the Forward with Fairness Policy, the Bill
retains a distinction between protected and unprotected industrial
Unprotected action is an industrial action taken during the
nominal term of an existing enterprise agreement. Under the Bill,
if unprotected industrial action is taken, Fair Work Australia will
be able to issue orders that it cease. Fair Work Australia will
operate as the AIRC has operated under WorkChoices, namely, that it
has no discretion whether or not to issue such orders. If the
unprotected industrial action is occurring, the orders must be
issued. If the orders are issued and ignored, the Federal Court (or
Federal Magistrates Court) can enforce the orders by way of
Like WorkChoices, an employer can proceed directly to Court to
obtain an injunction against unprotected industrial action.
The rules and regulations surrounding protected industrial
action are also very similar to WorkChoices. If employees want to
take industrial action they must make an application to Fair Work
Australia for a secret ballot order. Fair Work Australia can grant
an order if employees are seeking to reach agreement. A ballot will
be conducted by the Australian Electoral Commission. 50% of the
employees voting must be in favour of taking industrial action. At
least 50% of those eligible to vote must vote. The industrial
action is only to be taken in support of claims for enterprise
bargaining or in response to a lockout. Protected industrial action
can be terminated by Fair Work Australia where:
industrial action is causing, or threatening to cause, imminent
significant economic harm to any of the employees and, in the case
of employee claim action, the employer as well;
where industrial action is threatening life, personal safety,
health or welfare of the population, or a part of it, or
threatening significant damage to the economy.
Payment for industrial action
If employees take unprotected industrial action, the employer is
prohibited from making any payment to an employee for a minimum of
4 hours. This is in line with WorkChoices.
A different approach however is taken if the industrial action
is protected. Under the Bill there is no 4 hour minimum nonpayment
for protected industrial action.
Where partial work bans are imposed, employers have the option
of giving notice to:
reduce wages by a specified proportion; or
make no payment at all.
Right of Entry
The Bill allows union officials to enter premises to investigate
suspected contraventions of employee terms & conditions of
employment. Like WorkChoices this extends to investigating OH&
S breaches or to have discussions with employees who are union
Union officials also have extremely broad powers to compel
employers to produce a document on 14 days notice. This is not
limited to wage records, and it is not limited to records of union
members. It extends to records considered relevant to a
contravention of the Act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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