Departments and agencies are responsible for implementing strategies for dealing with industrial action and advising the CBU of any proposed industrial action or response. Departments and agencies must ensure that the impact of industrial action is minimised and that any response is appropriate.
Overview of industrial action provisions in the FW Act
The Fair Work Act provides that industrial action must not be organised or engaged in before the nominal expiry date of an enterprise agreement. After the nominal expiry date has passed, employees are entitled to take protected industrial action. It is protected if it is endorsed in a secret ballot of employees held in accordance with a protected action ballot order of the FWC.
It is unlawful to make payments to employees in relation to a period during which they engage in a total stoppage of work. Industrial action may include any stoppage of work and unauthorised absences from the workplace. Different restrictions on payment apply for partial work bans and unprotected action.
An employer cannot dismiss an employee, injure an employee in his/her employment or alter the position of an employee to the employee’s prejudice because the employee is proposing to engage in, is engaging in, or has engaged in protected industrial action.
Industrial action under the FW Act does not include action sanctioned by the employer or action by an employee based on a reasonable concern about an imminent risk to his/her health and safety, provided that the employee does not refuse to perform other safe and appropriate work. Employees in this category are entitled to continue to receive payments.
Suspension and termination of industrial action
Protected industrial action
Protected industrial action can be suspended or terminated by an order of the FWC. Application for suspension or termination of protected industrial action can be made, among others, by the parties to the agreement, a third party affected by action, and a state minister with responsibility for industrial relations. The FWC can also order suspension or termination of protected industrial action on its own initiative.
The circumstances when protected industrial action may be terminated include industrial action that is causing significant harm to the employer or employees who will be covered by the agreement.
The FWC may also suspend or terminate protected industrial action if it threatens to endanger the life, personal safety, health or welfare of the population or part of it, or causing significant damage to the economy or an important part of it.
Protected industrial action may also be suspended if the FWC considers that a cooling-off period is appropriate.
Unprotected industrial action
Under the FW Act unprotected action includes any industrial action before the nominal expiry date of an applicable enterprise agreement. Other forms of industrial action that are not protected action for the purposes of the FW Act include any action taken in the absence of a successful ballot, or action in support of unlawful terms, pattern bargaining or demarcation disputes.
The FWC on an application or its own initiative must stop or prevent industrial action if it is satisfied that that industrial action is unprotected industrial action. Applications for such orders must be determined by the FWC within two working days.
For full details relating to suspension and termination of protected industrial action see Part 3-3 of the FW Act.
Action required by departments and agencies
Protected industrial action:
Protected action ballot orders
Departments and agencies are requested to promptly send to the CBU copies of any application to the FWC by a union or employees for an order for a protected action ballot to take industrial action and the result of the application.
Where departments and agencies consider challenging the application to the Fair Work Commission, they are required to consult with the CBU and the portfolio department. If the outcome of consultation is that there are compelling reasons for challenging the application, the application to challenge will require Government approval.
Total stoppage of work
Where there is a total stoppage of work during a period of protected action, section 470 of the FW Act requires departments and agencies not to pay those employees who have participated in the stoppage but only in relation to the actual period not worked. Departments and agencies must advise the relevant portfolio Minister and the CBU where such deduction occurs.
Departments and agencies need to have sufficient evidence to be able to determine which employees have actually stopped work and for what period/s (e.g. days, time, during ordinary hours of work or overtime work), and then determine whether the evidence is sufficient enough to warrant deductions from pay to be made.
Partial work bans
Where protected industrial action does not involve a complete withdrawal of labour but involves action such as bans and limitations, departments and agencies may determine it is of such a nature as to warrant deductions of pay under section 471 of the FW Act.
If the department or agency believes the action does warrant application of section 471, the prior approval of the relevant portfolio Minister and the Minister for Industrial Relations (through the CBU) is required before implementing procedures under that section, including the issuing of written notices to employees of intended reduction of payments. In any submission seeking approval, departments and agencies are expected to outline:
- why the action taken by employees warrants the application of section 471
- what proportion of the employee’s pay is intended to be deducted
- the method by which the proportion was determined
Collecting evidence relating to the employees partial work stoppages is important. Departments and agencies need to have sufficient evidence to be able to determine which employees have actually stopped work and for what period/s (e.g. days, time, during ordinary hours of work or overtime work), and then determine whether the evidence is sufficient enough to warrant deductions from pay to be made.
The assessment must include a comparison between an employee’s normal duties and how they are performed with the performance of the same duties during a work ban and then assess whether it warrants deductions of pay. It is important to note that some stoppages may be caused by other reasons. For example, in some instances an employee’s stoppage may be caused by illness or injury or by a reasonable concern about an imminent risk to their health and safety, when they do not refuse to perform other suitable and available work.
Before deductions are made in relation to partial work bans the employee must be provided with a written notice which says that because of the ban the employees payments will be reduced by the proportion specified in the notice (FW Act s 471) as well as the basis for the calculation. It should be noted that the Fair Work Commission has the power to make an order varying the employer notice in relation to the deduction taking into account what is reasonable and fair in the circumstances of the case (FW Act s 473).
Employer response action
Where a department or agency intends to engage in ‘employer response action’ as defined in section 411 of the FW Act, the prior approval of the Government (through the CBU) is required.
FWC orders suspending or terminating protected industrial action
Where a department or agency intends to apply to the FWC for orders to suspend or terminate protected industrial action, the prior approval of the Government through the CBU is also required.
Unprotected industrial action:
Section 474 of the FW Act requires departments and agencies not to pay employees who have participated in unprotected industrial action. The minimum deduction is four hours pay even if the industrial action is for less than four hours. Separate provisions apply to overtime bans. Departments and agencies must advise the Government and the CBU prior to making such deductions.
FWC orders stopping or preventing unprotected industrial action:
Where a department or agency intends to apply to the FWC for orders to stop or prevent unprotected industrial action, the relevant portfolio Minister and the CBU must be advised.
Court action for injunction / enforcement orders / industrial torts:
Where a department or agency intends to apply to the courts to seek or enforce any order in relation to unprotected industrial action, the prior approval of the relevant portfolio Minister and the Minister for Industrial Relations is required. A copy of the intended application must be sent to the CBU accompanying the approval request.
Civil remedies in response to claims for payment:
The prior approval of the relevant portfolio Minister and the Minister for Industrial Relations is also needed if a department or agency wishes to apply for a civil remedy in respect of any claim for payment during any period of industrial action.
Reviewed 17 December 2019