Can non-union members take protected industrial action?

Q&A

Can non-union members take protected industrial action?

Can employees who are not members of a union take protected industrial action relating to an enterprise agreement? And, are unions automatically bargaining agents, even if there are no members at the workplace?

WantToReadMore

Get unlimited access to all of our content.

Can employees who are not members of a union take protected industrial action relating to an enterprise agreement? And, are unions automatically bargaining agents, even if there are no members at the workplace?

This question was recently sent to our Ask an Expert service.

Q  The nominal expiry date in our enterprise agreement occurs on 1 July 2013. The employees have indicated that they may consider protected industrial action in support of some of their claims under the proposed agreement. We did not encounter any industrial action by the employees during negotiations relating to the existing agreement. Our company is querying whether protected industrial action, as prescribed under the Fair Work Act 2009 is only available to employees who are members of a trade union, or is it available to all employees?

A  The Fair Work Act does not specify that an employee is required to be a member of a trade union to engage in protected industrial action. The Fair Work Act provides that industrial action will be protected if it is undertaken for the purpose of supporting or advancing bargaining claims or for responding to a lockout by the employer, provided that certain procedural requirements are met. Once an agreement is made, no industrial action can be taken — at least before the nominal expiry date of the agreement and in the pursuit of bargaining. Under the Fair Work Act, engaging in protected action is a workplace right. An employer is prohibited from taking adverse action against an employee in response to protected action.
 
Under the Fair Work Act (s413), ‘protected industrial action’ is when: 
  • bargaining in relation to a new single-enterprise agreement (that is not a greenfields agreement)
  • the nominal expiry date of an existing agreement has passed
  • the Fair work Commission has approved a protected action ballot
  • at least 50 per cent of eligible employees vote in the ballot
  • there is a majority vote in favour of the industrial action
  • the bargaining representatives are genuinely trying to reach agreement
  • the action is not for unlawful terms or part of pattern bargaining or part of a demarcation dispute
  • the bargaining representatives have complied with all relevant notice requirements
  • employees and the bargaining representatives have complied with all Fair Work Commission orders.
Union involvement in agreement-making

While trade union membership is not a prerequisite for engaging in protected industrial action, a union may still become involved in the bargaining process. Under the Fair Work Act (s174), a union is automatically a bargaining representative for an enterprise agreement if it has a member in the workplace whose industrial interests it is entitled to represent, and the member does not appoint another person. Employees can revoke the automatic appointment of the union, or appoint a different bargaining representative in its place, provided this is done in writing. The employer can also appoint their own bargaining representative.

Consequently, under the Fair Work Act, an enterprise agreement with no union involvement is only possible where there are no union members and the employees do not (or cannot) appoint a union as their bargaining representative, and where all union members at the company choose to appoint a bargaining representative other than their union.

If there is more than one union who is automatically a bargaining representative, the company is not able to bargain with one union in preference to another.
 


Need more help with people management?

Australian Business Consulting and Solutions has a dedicated team of HR experts who can assist you with your specific people management issues and problems. If you would like a free and obligation-free initial assessment of what you require in terms of professional assistance, you can obtain more information from from our website.
Post details