There has not been any significant increase in industrial action
since commencement of the Fair Work Act 2009 ("FW Act").
This is because it retains some of the more stringent features of
outlawing industrial action during the life of an enterprise
the requirement to obtain a protected action ballot order
before being able to put proposed industrial action to a vote;
the requirement for voting for industrial action to be
conducted by secret ballot, as opposed to a show of hands in the
tea room; and
the retention of a number of mandatory pay docking requirements
when employees are taking industrial action.
The FW Act also retains the philosophy of endeavouring to
achieve industrial peace throughout the life of an enterprise
agreement whilst encouraging industrial action (through a complex
process) during bargaining for a new agreement.
The FW Act retains the concepts of protected and unprotected
industrial action. Protected action is confined to bargaining for a
proposed enterprise agreement. Protected action is now split into 3
subcomponents – employee claim action, employee response
action and employer response action. Whilst protected action can be
taken during the bargaining process, it will not be protected if it
is intended to advance claims for the agreement about matters that
are not permitted, unlawful terms or pattern bargaining.
Applications to Fair Work Australia made by a union/employees to
obtain a protected action ballot order can be successfully opposed
if it can be shown that the relevant bargaining representative has
not genuinely been trying to reach agreement, prior to the
application being made. The LHMU failed in an application for a
protected action ballot on this ground because it was found to be
keeping its options open by requesting to vary an existing
enterprise agreement containing prohibited content (Liquor,
Hospitality and Miscellaneous Union v Fosters Australia Ltd
AIRC 1 June 2009).
There is also a new ground upon which Fair Work Australia may
order the suspension or termination of protected industrial action.
This is where the action is causing or threatening to cause
significant economic harm to the employer and any employees (for
employee claim action) or any employees (for employer/employee
response action). The harm must also be imminent.
Protracted industrial action can also lead to Fair Work
Australia making a workplace determination. This means that Fair
Work Australia determines the terms and conditions to be contained
in the enterprise agreement. If this occurs, all terms and
conditions already agreed between the parties must be included.
In relation to strike pay, mandatory pay docking remains for
most forms of industrial action. Pay must be docked for the
duration of time that the action lasts (or, in the case of
unprotected action, for a minimum period of 4 hours, where the
duration of the action is less than this). The primary exception to
these requirements relates to partial work bans that are protected
action. Here, employers have the choice of making no deductions,
reducing pay or not paying wages at all. However, prior notice must
first be given of any intention to reduce or not pay wages. There
is little change in the notice requirements when industrial action
is about to be taken. It is important for employers to obtain legal
advice as to whether a notice of intended action satisfies the
statutory requirements. If it does not, then any action taken will
not be protected action.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).