Protected and unprotected industrial action
In keeping with the Forward with Fairness Policy, the Bill retains a distinction between protected and unprotected industrial action.
Unprotected action
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 injunction.
Like WorkChoices, an employer can proceed directly to Court to obtain an injunction against unprotected industrial action.
Protected 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 members.
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.
