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

By Joseph Nunweek on September 16th, 2015
  1. Industrial Relations
  2. Industrial Action

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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 a

Accredited Specialist Workplace Relations

Editor, Employment Law Adviser





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