Category: industrial action

Employer forced to ‘suffer in silence’

November 2016

Under the Fair Work Act 2009 (Cth) (FW Act) an employee covered by a FW Act enterprise agreement must not organise or engage in industrial action until the agreement’s nominal expiry date has passed (s 417(1)). Industrial action includes a failure or refusal by an employee to attend for work. In Director of the Fair Work Building Industry Inspectorate v McCullough (2016) the Federal Court had to determine whether the non-attendance of employees of a building contractor for work at a hospital construction site in Perth on 18 July 2013 contravened s 417(1) of the FW Act. On that same day, the Construction, Forestry, Mining and Energy Union (CFMEU) organised a rally at the site of the Perth Children’s Hospital project in Nedlands, Perth. In order for non-attendance at work to be industrial action, the action must be industrial in character. Generally, this will not be the case if the action has nothing to do with disputation and bargaining. The rally in question was concerned with wages and conditions on work sites controlled by John Holland. The employees in McCullough worked at a hospital site, but it wasn’t a John Holland site. The Court in McCullough observed that a political strike, such as an employee attending a rally or some other form of demonstration or public meeting to express views about some issue not arising out of their immediate relationship with their employer, can still be industrial action. Industrial 'muscle' Where the industrial ‘muscle’ of organised labour is used to advance broader political issues, an employee who withdraws his or her labour in support of those political objectives engages in industrial action. The Court concluded that because the rally had clear industrial objectives, an employee of an employer other than John Holland who did not attend work because of the rally would be engaging in industrial action - even though there was no direct evidence that the employees actually attended the rally. The Court said it was reasonable to infer the failure to attend for rostered work on 18 July 2013 was because of the rally. Industrial action does not include action by an employee that is authorised or agreed to by the employer of that employee. The employees argued the employer authorised the action because the director knew they may not attend for work on 18 July 2013, but did not tell any of them they could not attend. The Court considered that for the purposes of determining whether industrial action was exempted from the s 417(1) prohibition because the employer authorised or agreed to the action: such authorisation cannot be given retrospectively; an employer may, in particular circumstances, authorise action if it customarily allows employees to take action at a certain time or in certain circumstances; and an employer may authorise or agree to action impliedly or by express words (as opposed to in writing). The Court in McCullough observed the most that can be said is that the director suffered the stoppage in silence because this had happened in the past and he considered he had no control over it. Although the company records showed the employees’ absence from work as leave without pay on 18 July 2013, this did not indicate the company had authorised or approved their nonattendance at work as rostered on that day. PS: Dealing with industrial action is a subject that requires legal advice and understanding. That’s why the Employment Law Handbook, written by legal experts at Holding Redlich, has an entire chapter dedicated to Industrial Action (I3). In it, you’ll discover what industrial action is and who can take it. Plus, how to identify whether industrial action is taking place and what types of industrial action are regulated by the FW Act. Employers can also find information and assistance through explanations of legal terms and definitions, case laws and examples. There’s even a very handy downloadable checklist outlining the requirements of protected industrial action, and more.  

When protected industrial action can be suspended, and when it can’t

September 2015

Why this case could make you late to work...

Our office hasn’t been too badly impacted by the Melbourne tram strikes – yet. So far, they’ve mainly rolled on between the hours of 10am and 2pm. By the time most of the team leave for the day, things have almost evened out on the rails and on the road. If strikes continue (and move to an earlier point in the day), that could change, and some of us could be rolling into work unfashionably late. And of course, we’re very much aware of the burden the midday strikes have on businesses with shift-based start times. Pressure piles up on the buses, trains and private cars. Even if your employees aren’t tramming to work, it quickly becomes their problem too. It’s a mighty inconvenient situation. But it is it so inconvenient that the industrial action by drivers could be deemed unlawful? As tense negotiations for a new enterprise agreement between the drivers and their employees continue, I asked Employment Law Adviser Editor-in-Chief Catherine Brooks to explain to our readers when and how protected industrial action can be terminated and suspended. It should give you a valuable insight into what’s been happening in Melbourne the past few weeks – and Catherine also offers a few tips on what to do (aside from stay calm!) if you’re faced by strikes or other industrial action from your workforce. For more information on your rights and obligations when negotiating an enterprise agreement with your own employees, or for navigating the thorny matter of industrial action, you can consult the Employment Law Practical Handbook. Through our brand-new digital portal, it’s easier than ever to find what you’re looking for, edit and adapt our forms, and receive updates as the law evolves.

Until next time, Joseph Nunweek

Editor, Workplace Bulletin

When protected industrial action can be suspended, and when it can’t

By Catherine Brooks Last month, Yarra Trams, the company that operates Melbourne’s tram serviced, was unsuccessful in its application to the Fair Work Commission (FWC) to suspend protected industrial action from being taken by its drivers. What is protected industrial action? In limited circumstances, employees bargaining for an enterprise instrument can engage in protected industrial action to further their claims – like going on strike. Industrial action is protected if it is organised for legitimate collective bargaining, and meets stringent prerequisites under the legislation. When a strike can be forced to stop: suspension or termination of protected industrial action by the FWC Section 424(1)(c) of the Fair Work Act 2009 gives the FWC the power to make an order to suspend or terminate protected industrial action if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten: - to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or - to cause significant damage to the Australian economy or an important part of it. This suspension or termination of protected industrial action brings to an end the right to take protected industrial action. Any continued strikes or industrial action after this point will be considered unlawful. What will it take to make the FWC intervene? The mechanisms available under the legislation to suspend or terminate protection industrial action are not intended to be triggered where the industrial action is merely causing an inconvenience to other people. There must be an actual danger or peril to the welfare of the community if the protected industrial action was taken or continues to be taken. For example, in Ambulance Victoria v LHMU [2009] FWA 44, the protected industrial action involved a 4-hour stoppage of emergency ambulance services across various hospital branches at different times. This was a clear and strong case in which the industrial action directly threatened lives and the health of those in need. Therefore, the action was prevented from being taken. Last month’s tram strikes On 27 August 2015, the Rail, Tram and Bus Union (RTBU) implemented a 4-hour strike by Melbourne tram drivers over a pay dispute with Yarra Trams. While Yarra Trams lodged an application with the FWC to have the protected industrial action suspended or terminated on the basis that it would endanger the safety and welfare of Melbourne residents that rely on trams, Commissioner Lee of the FWC found that there was no real threat to the population arising from the tram strike. Since then, negotiations with the RTBU are ongoing and further industrial action is intended to push for a resolution and finalisation of bargaining for the proposed enterprise agreement. If any part of your business is based in Melbourne, or relies on other businesses based in Melbourne, be prepared for the possibility of unforeseen delays or even absences this week. People are likely to be getting in late. That’s an inconvenience you’ll just have to factor in. But what about a situation where you face industrial action from your own employees? Follow the rules, and make sure everyone else is following the rules too If industrial action is set to occur at your work: • Check that the industrial action is lawful and that the stringent provisions in the Fair Work Act have been complied with. • Before the action is taken, the business must be given three working days’ notice of the intention (and type) of industrial action being taken. If this notice has not been provided, contact a legal advisor immediately. You should also notify the relevant employee bargaining representative that you need to talk with them about the breach. • If you are of the view that the industrial action being taken is unlawful, immediately make an application to the Fair Work Commission to have the action stopped. • While the industrial action is taking place, make sure that you implement a clear management action plan so that all managers properly understand their role throughout the action (such as monitoring and liaising with the bargaining representatives and media). Warm regards, Catherine Brooks Principal Accredited Specialist Workplace Relations Editor, Employment Law Adviser

How industrial activity is protected in your workplace

November 2014

[Ed Note: The Fair Work Act 2009 (Cth) (FW Act) contains industrial activities protections, which make it unlawful for you to do the following things to a member of the workforce because of their participation in industrial activity:

take adverse action against; coerce; make misleading representations to; and exert undue influence or pressure on.

These protections are in place to protect freedom of association – that is, the freedom to be represented by a union and to participate in its activities (it is not simply the freedom to join a union without adverse consequences).

In today’s bulletin, Charles Power explains what constitutes industrial activity and details exactly what the protections prohibit you from doing.

Until next time...]

When is industrial activity protected under the FW Act?

What is industrial activity?

Industrial activity includes the following things:

becoming an officer or member of a union or employer association; becoming involved in establishing a union or employer association; organising or promoting an activity for a union or employer association; participating in an activity organised or promoted by a union or employer association; complying with a request made by a union or employer association; representing or advancing the views, claims or interests of a union or employer association; paying a fee to a union or employer association; seeking to be represented by a union or employer association; and taking part in industrial action.

How is industrial activity protected?

Any member of the workforce who takes part in industrial action is protected from the following four things:

Adverse action, i.e. conduct that reduces the advantages a person receives or expects to receive in their employment. Just as you cannot take adverse action against someone for engaging in industrial activity, nor can you take adverse action against someone for not engaging in industrial activity. Coercion, i.e. you cannot take steps to coerce an employee to engage in industrial activity. Misleading representations, i.e. you cannot knowingly make a false or misleading representation about another person’s obligation to engage in industrial activity, or their obligation to disclose their trade union or employer association membership status. Undue influence or pressure, i.e. you cannot place undue pressure on an employee to become, remain or cease to be a member of a union or employer association.

Case Law: Conduct of unionist employees is not 100% protected

A recent High Court case, CFMEU v BHP Coal (2014), highlighted that, despite these protections, employers must also consider their non-unionist employees when dealing with unionist employees’ conduct.

During a protest, an employee waved a sign that said, “No principles SCABS No guts”. The employee was dismissed on the grounds that the sign breached the workplace conduct policy because it was offensive to fellow employees. Three out of five members of the High Court ruled that this reason could be separated from the protected industrial activities and, as such, the dismissal did not occur because of the employee’s engagement in union activity and so did not contravene the FW Act.


Charles Power

Employment Law Practical Handbook.
Ed Note: Have a query of your own on industrial action? Then visit the Q&A Portal. It’s a place where like-minded business professionals, managers and employers discuss HR and employment law related issues. What’s more – it’s free! Go here for more.

Fair Work Act Review Summary Part 4: Industrial Action

August 2012

Earlier this week I looked at the recommendations of the Fair Work Act Review Panel dealing with enterprise bargaining and agreement making. In today’s Bulletin, I’m going to look at the some of the key changes recommended by the Panel in relation to the regulation of industrial action.

But first let me highlight some of the areas in which the Panel declined to recommend changes: Read more

Can unions seek to take protected industrial action when an employer refuses to bargain?

May 2012

As you’re no doubt well aware, industrial action has been in the headlines quite a bit lately (Qantas anyone?!). Perhaps as a result of this increased coverage, we’ve had a number of enquiries come through – it seems people are eager to know more about industrial action and how it can affect their business. When the Fair Work Act 2009 (FW Act) was enacted, it was generally accepted that protected industrial action was unavailable to parties seeking to negotiate an enterprise agreement until some form of good faith bargaining had taken place between the parties. Read more

How to Make Sure You Don’t Breach General Protections Legislation

January 2010

Under the Fair Work Act, your employees are protected from discrimination in a number of ways. These protections are known as general protections, and if they are breached, serious penalties can be imposed. You cannot breach an employee's workplace rights! Workplace rights give your employees the freedom to exercise and enforce their employment entitlements. For example, if an employee has an entitlement to take leave on a particular day, they have the right to enforce that entitlement. Read more