Key Points:

Government agencies need a good understanding of possible responses to union action and pay issues for staff taking industrial action.

The Community and Public Sector Union has applied for a protected action ballot order to give Department of Human Services staff the option of striking. This strongly indicates that industrial action is the union's intended tactic for dealing with pay offers that fail to meet its 4 percent a year wage claim.

Understanding what industrial action is and the legal framework in which it now operates is crucial for government agencies. In particular, they need a good understanding of possible responses to union action and whether staff who take industrial action should continue to receive their usual wages.

What is industrial action?

Industrial action is a negotiating tool that can be used by either employees or employers to advance a claim in the workplace. It is the performance of work in a manner differently from how it is customarily performed. The most common forms of industrial action are:

  • employees refusing to come to work (this is sometimes paired with a protest or picket line);
  • employees failing or refusing to perform any work at all;
  • employees delaying or limiting the sort of work they do (often known as a go-slow, work to rule or partial work ban); and
  • employers locking employees out of the workplace.

Under the federal Fair Work Act, industrial action by employees, unions or employers is unlawful unless it is "protected".

What is "protected" industrial action?

"Protected" industrial action is industrial action that is permitted under the act. There are a number of steps that employees (or, more usually, the relevant union) must follow to be able to take "protected" industrial action:

  • An application to the Fair Work Commission for a secret ballot order. The application must identify what kind of action the employees intend to take. If the ballot is successful, only the types of industrial action identified in the order will be protected.
  • Once an application is approved by the commission, the commission grants a secret ballot order, which allows employees to vote "yes" or "no" for industrial action.
  • The Australian Electoral Commission conducts a secret ballot. More than 50 percent of all eligible employees must vote "yes" to be able to take industrial action.

If more than half of eligible staff vote in favour of industrial action, the employees will then have 30 days in which to give three days' notice to the employer of their intention to take action and for that action to commence. Only action that begins within the 30-day period will be protected.

Do employees get paid during protected industrial action?

Payment of wages to striking employees is an area of considerable confusion. What is clear is that it is an offence for an employer to pay an employee who is taking industrial action that involves the complete cessation of work, even if that action is protected.

However, this prohibition on strike pay does not necessarily apply to partial work bans. In the case of a partial work ban, employers have three options:

  • pay employees in full;
  • stand employees aside completely until they cease industrial action; or
  • issue a partial work notice and reduce employees' pay proportionately to the amount of work they are actually performing.

Reducing employees' pay for a partial work ban can place a considerable administrative burden on employers, who must calculate the estimated time employees spend on particular tasks and reduce their pay accordingly. Nevertheless, a partial work notice can be an effective tool for government departments seeking to enforce their rights on industrial action without bringing entire departments to a standstill.

Are there any limits on industrial action?

Courts are reluctant to impose hard and fast rules on the meaning of "industrial action". However, public servants should keep in mind that releasing politically sensitive information is unlikely to be considered industrial action. Similarly, behaviour that breaches the APS code of conduct, even if it takes place during industrial action, may be grounds for disciplinary action.

Consider two industrial relations court decisions last month:

  • The High Court held that use of the word "scab", in breach of a code of conduct, was sufficient grounds for disciplinary action against an employee.
  • The Federal Court held that releasing confidential ambulance response time data directly to the media without the organisation's consent was not industrial action and could be a breach of the employment contract, which might leave the employee liable to pay damages.

For public servants, a critical issue will be ensuring that whatever industrial action they take complies with the APS values and code of conduct, as failure to comply may be sufficient grounds for disciplinary action.

Industrial action is an ever-evolving feature of industrial relations and a constant source of ambiguity for employers and employees. Getting good advice early to help you manage the process is critical to successful outcomes.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.