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This is the sixth in a series of articles about the Federal Government's proposed new workplace legislation known as the Fair Work Bill 2008.
The Government intends for the new laws to be fully introduced by 1 January 2010, with some aspects to commence 1 July 2009. At the date of this article, there have been no changes in the law and it is possible that there will be changes to the Fair Work Bill as it moves through the Senate. We will report on any substantial changes as they occur.
This article summarises the key features of the Fair Work Bill with respect to industrial action. This aspect of the Fair Work Bill is intended to commence on 1 July 2009. Many features of the existing system will be continued. However, there will be some notable differences.
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.
Under the Fair Work Bill, it will be open to Fair Work Australia to order a stop to industrial action. Orders will be enforceable in the Federal Court. If there is a contravention, it will be open to the Court to impose penalties of up to $6,600 per person per offence.
The Fair Work Bill retains the concept of 'protected industrial action'. Subject to certain conditions, if the action is ‘protected’, no legal action is available under a State or Territory law in relation to it. For example, if employees withdraw labour in support of claims in relation to a proposed agreement, the employer will be unable to bring legal action against the employees as the action is 'protected'.
The Fair Work Bill dispenses with the requirement under existing law for a party to initiate a ‘bargaining period’ if the party intends to take protected industrial action. However, six important conditions must be satisfied in order for industrial action to be protected under the Fair Work Bill.
First, industrial action will not be protected if taken before the nominal expiry of an enterprise agreement. Second, the action must be about:
If the action is not about any of these matters, it cannot be protected industrial action.
Third, the action must be organised by the employees or their bargaining representative (e.g. the union). Fourth, before action is taken, the parties must have genuinely tried to reach agreement. Fifth, a majority of eligible employees must vote in support of the action through a secret ballot. Sixth, the employer must receive at least three days’ written notice of the industrial action before it is taken.
Protected industrial action is not available in relation to:
Employers will only be able to take lawful industrial action in response to employee-initiated industrial action. This means that employers will not be able to initiate the action. Before the employer can take action in response, the employer must genuinely try to reach agreement with the 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 Bill will allow employees to take protected industrial action in response to employer industrial action. If so, the employer must receive three days’ written notice in advance.
The Fair Work Bill 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. This is consistent with existing law.
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 will be able to intervene in disputes and make the agreement for the parties. Fair Work Australia will also have the power to:
Further details about the dispute resolution role of Fair Work Australia will be the subject of a forthcoming article in this series.
If you have any questions about the new laws and how they may affect your business, please do not hesitate to call your usual contact at Australian Business Lawyers or our Managing Partner, Tim Capelin on (02) 9458 7497.
Note: This is for information purposes only.
It does not purport to be comprehensive or to render legal advice.
