The hurdles of industrial action

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We all know that ASU members have the right to take protected industrial action.  Unfortunately, exercising that right is not always straightforward.  There are a number of administrative and legal hurdles that must be cleared first, and by world standards, the restrictions on taking industrial action in Australia are quite onerous.  

In Australia, right to take protected industrial action is confined to action in support of claims for a proposed enterprise agreement.   The right is further restricted by the requirement to first have the action approved by a ballot of all members that would be covered by the proposed enterprise agreement.  In itself that is not too problematic for a union, because any decisions we make to take industrial action are made collectively anyway.  The problem is the process is not straightforward.

To conduct a ballot to approve taking industrial action, we must first seek an order from the Fair Work Commission.  The content of the actual ballot must set out any items of industrial action that we may wish to take, and FWC must approve those items.  If the employer does not oppose our ballot, FWC usually issues the order within a few days.  If the employer does oppose the ballot the matter can get tied up in proceedings for some time.  

If FWC makes an order approving our ballot, the Australian Electoral Commission then runs the ballot process.  The ballot process itself usually takes about three weeks. 

Once the ballot has been voted up, we are must notify the employer of the action we’ll be taking.  The notice period required is usually three clear working days, but can be as long as seven clear working days. 

If any of these steps are not taken, then any industrial action will not be protected.  So simply exercising your right to take protected industrial action can be quite convoluted.

Mornington Peninsula Appeal

In a recent example, after consultation with the relevant membership group, the ASU sought three orders from the FWC for ballots of members at Mornington Peninsula Shire Council to approve the taking of protected industrial action.  Normally we would only seek a single order, but the ASU and Council were bargaining for three separate agreements, so an order was required with respect to each one.  

The Council opposed our applications, arguing that a number of the items of action sought were not industrial action as defined by the Fair Work Act 2009.  The three matters were heard jointly by Commissioner Bissett.   

The main issue in the matter was whether a stoppage for the purpose of attaching campaign material to your clothing or for the purpose of typing an email message about a bargaining campaign, was capable of being industrial action. 

The wording of our items was relevantly identical to wording previously approved by the same Commissioner.  Unsurprisingly the Commissioner again found our wording to be acceptable (with one exception on the basis that the circumstances in this case were different to the previous time she considered the same item).

The Council then filed an appeal against the Commissioner’s decision.   Appeal matters in FWC are determined by a ‘Full Bench’, which is a panel of FWC members (usually three) rather than a single FWC member.  Decisions made by a Full Bench set a precedent for subsequent matters, which makes the outcome of Full Bench matters important.

The Council then filed an appeal against the Commissioner’s decision.   Appeal matters in FWC are determined by a ‘Full Bench’, which is a panel of FWC members (usually three) rather than a single FWC member.  Decisions made by a Full Bench set a precedent for subsequent matters, which makes the outcome of Full Bench matters important.

The meaning of industrial action has been subject of a series of decisions by FWC and the Courts.  The understanding of what is included within the definition has been refined with each decision.  The main issue in this case was whether a stoppage for the purpose of attaching campaign material to your clothing was capable of being industrial action. Council argued that the Commissioner misapplied the Fair Work Act’s definition of industrial action.

The FWC Full Bench heard the matter and issued its decision a few days later.  The Full Bench found that some of our previously approved items should not have been approved.  That is disappointing, but critically the Full Bench agreed with us that a stoppage for the purpose of attaching campaign material to your clothing or typing an email message about a bargaining campaign is industrial action (Note: It is the stoppage itself in such an instance that is protected).  The Full Bench decision also included commentary that will assist the ASU in designing items that will comply with the current interpretations of what is industrial action.

While the legal processes were playing out the three proposed agreements got voted up, so no industrial action will actually take place.  It is noteworthy that even if Council had not filed an appeal the ballots would not have been completed in time for us to initiate industrial action anyway.


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