Industrial Action

Industrial Action

There are many and varied types of industrial action that employees can take in the workplace to agitate for change, most commonly seen during enterprise bargaining negotiations.  While most Australians probably only think of ‘strikes’ (quite simply referring to a withdrawal of an employee’s labour) in terms of industrial action, it is not the only type of action employees may take.

Strikes attract the most attention in the media, with recent examples such as ongoing action by Jetstar bag handlers and counter staff at various airports prior to Christmas 2019 and more recently in February 2020. Strikes have traditionally been popular amongst workers and unions due to their immediate impact, i.e. the withdrawal of labour strikes at the heart of the employment relationship as well as potentially impacting, in the immediate short term, on the employer’s ability to operate at full capacity.

Let’s consider some other types of industrial action taken by employees:

  • ‘Bans and limitations’: this refers to situations where employees refuse to work overtime or may refuse to undertake particular duties within their classification;

  • ‘Go slows’: as the name suggests, refers to employees operating below their normal speed or by taking additional toilet breaks etc.;

  • ‘Blue flu’: refers to employees on mass taking higher than average sick leave entitlements to impact upon the businesses’ capacity to produce;

  • ‘Picketing’: refers to situations where employees gather outside the business as a ‘picket’ or barrier with the intention to either restrict the entry of goods and services or to intimidate other employees and contractors entering the premises.

It is important to note that employees have an implied duty of care to act in the best interests of their employer. Effectively, to engage in any behaviour intended to reduce or impact this obligation could be a form of industrial action.

Typically, enterprise agreements may contain a ‘no further claims’ clause that is intended to quarantine agreed conditions of employment for the duration of the agreement.

Further, there are provisions within the Fair Work Act 2009 that support this principle and impose stringent guidelines on parties about the process that must be followed in the lead-up to any protected industrial action.

Protected Industrial Action is a lawful industrial action or strike action authorised under the Fair Work Act 2009 and regulated by a protected action ballot order made by the Fair Work Commission in response to an application. It is important to understand that strike action by others not covered by the Fair Work Commission order in support of protected industrial action may be unlawful or unprotected action.

Protected or unprotected industrial action should not be confused with an employee’s right to stop work at any time on a reasonable or genuine concern of imminent risk to their individual health and safety. An employee who has stopped work for an imminent safety risk must comply with a reasonable direction by their employer to perform other available work.

Employees stopping for an individual imminent safety risk must take care to avoid ‘group think’ or ‘following others’.  Answers such as ‘I don’t know’ or ‘something to do with level 5’ may not be enough for protection under the Act.

Industrial action may be an action of any kind that involves the performance of work in a manner different from that in which it is customarily performed including any restriction, limitation on, or delay in the performance of work.  This may include but is not limited to a ban, limitation or restriction on the performance of work or refusal to work or attend for work.

Industrial action does not include an action that is authorised or agreed to by the employer. It is recommended that any agreement should be expressed in writing before the commencement of such action to avoid unnecessary complications.

WARNING both employers and employees should seek professional advice regarding industrial action as significant penalties, including individual penalties, can apply.  Persons working within the building and construction industry may also need to have regard for the Australian Building and Construction Commission (ABCC) enforcement activities.

For queries about industrial action by employees or any other employment matters, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL LAW or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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