Generally, when we think of industrial action we immediately think of strike action. However, there are many other types of industrial action that are probably used more frequently than strike action.
This article describes the various forms of industrial action and outlines briefly the legal position generated by the various forms of action.
Definition of industrial action
Industrial action refers to action in which employees work in a manner different from the customary manner. It includes restrictions, limitations, or bans upon work.
Failing to attend for work can constitute industrial action, as can a refusal to perform work while at the workplace.
Lockout refers to a specific from of industrial action associated with employers, in which the employer refuses employees entry to the workplace. Most typically, industrial action is taken in support of a claim(s) pressed by employees against the employer.
Industrial action not limited to employees
Industrial action is not limited to action by employees. Employers may also take action in response to employee action or in an attempt to get employees to comply with demands or to get them to refrain from doing certain activities (such as a lockout, as mentioned previously).
Under the Fair Work Act 2009, employers are only be able to take lawful industrial action in response to employee-initiated industrial action. This means that employers are not able to initiate the action. Before the employer can take action in response, it must genuinely try to reach agreement with its employees.
The employer must also give written notice to all bargaining representatives of the intended industrial action and make reasonable attempts to notify employees.
The Fair Work Act 2009 allows employees to take protected industrial action in response to employer industrial action. If so, the employer must receive three days’ written notice in advance.
Contractors may be involved in or affected by industrial action.
A strike is a collective withdrawal of labour by employees. Under such action, employees refuse to perform all work, not just selected duties. Strikes are usually, but not always, organised by a union. The purpose of a strike is to pressure an employer (or other third party) into complying with particular demands or refraining from doing something.
Under the federal Fair Work Act 2009 strike action may be 'protected action' if undertaken during a bargaining period for an enterprise agreement and other formal procedures have been complied with. Protected action may also cover other types of industrial action as well as strikes. 'Protected action' means that industrial tribunals will not intervene to resolve the dispute as long as it is conducted within the rules of legitimate protected action.
Six conditions for protected industrial action
Six important conditions must be satisfied in order for industrial action to be protected under the Fair Work Act.
1. Industrial action will not be protected if taken before the nominal expiry of an enterprise agreement.
2. The action must be about:
If the action is not about any of these matters, it cannot be protected industrial action.
3. The action must be organised by the employees or their bargaining representative (e.g. the union).
4. Before action is taken, the parties must have genuinely tried to reach agreement.
5. A majority of eligible employees must vote in support of the action through a secret ballot.
6. The employer must receive at least three days’ written notice of the industrial action before it is taken.
The Fair Work Act specifies that striking employees should not be paid for the period of the strike. Continuity of employment however is not affected.
The issue of whether employees have 'the right to strike' is one of the most contentious issues in industrial relations.
Protected action not available
Protected industrial action is not available in relation to:
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a proposed greenfields agreement
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a proposed multi-enterprise agreement
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a dispute about the membership demarcation of different unions at the worksite
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pattern bargaining, or
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unlawful terms.
Work bans, as the name suggests, involve employees refusing to do certain types of work or refusing to work with particular management, employees or other third parties. For example, a work ban may include employees refusing to train new employees who have been brought into the company to do the same job but on different conditions.
Bans on overtime are also included in this category of industrial action.
This type of action is attractive for collectively organised employees as they are theoretically still at work and getting paid, however the action can still have an adverse impact on the employer's business.
Employers may seek orders from industrial tribunals to have work bans lifted.
A 'go slow ' is where employees delay production or work flow to put pressure on the employer. The employees deliberately work slower than they would under normal conditions. A 'go slow' is often difficult for an employer to detect and equally as difficult for an employer to counter as theoretically, employees are still doing their job, even if at a slower rate than usual.
A work to rule campaign involves employees taking their work responsibilities very literally. For example, under a work to rule campaign, an employee who regularly works additional time for no additional benefit would only work the official set hours of the organisation. Another example may be a machinist in a factory who under normal circumstances would help out on other machines however, when working to rule, would only operate the machine he or she was originally hired to operate.
Such action can have a debilitating effect on a company. This type of action can also highlight to employers how much they rely on the good faith of their employees to do additional work and tasks as part of their everyday duties.
Tribunal orders may be sought by employers — as with work bans and 'go slow' tactics.
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Stop work meetings may be authorised or unauthorised. Some awards and agreements make allowance for authorised stop work meetings. These authorised meetings occur without loss of pay. Authorised meetings may just be by agreement between the employer and employees or union representative. Such an agreement may limit the number of authorised meetings allowed and the duration of such meetings. Meetings in excess of those requirements would be deemed unauthorised.
An unauthorised meeting is effectively a type of strike. It is a temporary withdrawal of labour and so time spent at an unauthorised stop work meeting is unpaid.
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Picketing often occurs in conjunction with strike action. It involves the physical presence of striking workers outside a workplace. Picketing may also involve blockading certain people or things from entering or leaving the workplace.
Picket lines can be very intimidating and are often used as an industrial tactic to add weight to strike action.
Picketing may breach the general law and police may consequently intervene — eg breach of the peace or similar offences may be committed.
A lockout is a form of industrial action open to employers. As the name suggests, a lockout occurs when an employer closes a worksite or premises and refuses entry to employees to work.
An employer will usually stage a lockout in response to industrial action taken by employees or to compel employees to accept particular terms or conditions of employment. A lockout does not terminate an employee's contract of employment and as such continuity of employment is not affected.
A lockout may be 'protected action' for the purposes of the Fair Work Act 2009 if it occurs during a bargaining period for an enterprise agreement and the other appropriate procedures and conditions are adhered to.
A secondary boycott, when carried out by a union, usually involves a union putting indirect industrial pressure on an employer. The union arranges with or forces (by threats of industrial action etc) a third party, usually a supplier of goods to the employer, to withhold its supply of goods until the union's demands are met.
The area of secondary boycotts is a veritable mine field and so if you feel you may be the subject of secondary boycott action it would be wise to seek expert legal advice.
No work as directed, no pay
An employer is entitled, at common law, to refuse payment to employees if the employees refuse to perform the work they have been contracted or directed to perform. The concept of 'no work as directed, no pay' is generally applicable to award/agreement employees as well as employees working under common law contracts and other contracts that may be regulated by legislation.
Employers generally adopt the 'no work as directed, no pay' tactic in response to employee action such as work bans or go-slows.
The Fair Work Act prohibits strike pay, and employers must dock pay for industrial action regardless of whether the action is protected or unprotected.
For protected action, the amount of pay deducted is the actual period of the action. For unprotected industrial action, the minimum deduction is four hours’ pay.
Orders to stop or prevent industrial action
Orders are orders available under the Fair Work Act to stop or prevent industrial action.
Fair Work Australia may make orders to prevent or stop industrial action. Orders may be sought by:
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the Commission on its own motion;
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a person who is directly affected or likely to be directly affected by the industrial action;
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a party to the industrial dispute; or
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an organisation of which a person who is directly affected is a member.
Orders are mostly used by employers wishing to stop or prevent threatened industrial action however, unions can also seek orders.
Protected industrial action can lose its ‘protected’ status if there is significant and imminent economic harm to the employees, the employer, or a third party. Also, the action can be called off by either Fair Work Australia or the Minister if life is being endangered, or significant damage is being done to the Australian economy or an important part of the economy.
In some circumstances, Fair Work Australia is able to intervene in disputes and make the agreement for the parties.
Fair Work Australia also has the power to:
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settle disputed terms of a proposed agreement
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issue bargaining orders to enforce good faith bargaining obligations
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settle industrial disputes, and
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make workplace determinations in some instances where negotiating parties cannot reach agreement and other avenues have been exhausted.
The Fair Work Act sets out five good faith bargaining requirements that all bargaining representatives must follow:
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attending and participating in meetings at reasonable times
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disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner
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responding to proposals made by other bargaining representatives in a timely manner
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giving genuine consideration to the proposals of other bargaining representatives and reasons for any responses
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refraining from capricious or unfair conduct that undermines freedom or association or collective bargaining.
Where an employer refuses to bargain with the employees, FWA has the power to test the support among the employees. Where an employer has not started bargaining or refuses to bargain, employees can apply to FWA for a ‘majority support determination’. FWA may issue good faith bargaining orders against the employer where a declaration has been issued and the employer refuses to bargain.
Where a bargaining representative has a concern about the scope of a proposed enterprise agreement, it can apply to FWA for a scope order setting out which employees the proposed agreement should cover. This may happen where a bargaining representative wishes to cover a category of employee not covered by previous agreements. No penalty occurs where a scope order is breached, although it may be relevant if bargaining orders are subsequently issued by FWA.
A stand-down is the suspension of employees without pay. This action may be available to an employer whose employees are engaging in industrial action. Stand-downs may be sought in relation to employees who are not on strike but who are unable top work because of strike action by other employees.
Traditionally, however, stand-downs are not used as disciplinary measures against striking workers. A stand-down can also be utilised by an employer at times when it cannot pay wages for reasons beyond it's control, for example, a downturn in business.