industrial action avenues & obstacles

INDUSTRIAL ACTION

Avenues & Obstacles

Paper for the 2nd ACTU Industrial Officers Conference Sydney, 25-26 July 2006

Tim Lyons Senior Advocate

National Union of Workers

Industrial Action: Avenues & Obstacles

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TABLE OF CONTENTS

1. INTRODUCTION. ............................................................................................. 3 The bad news......................................................................................................................... 3 Don’t get too depressed……................................................................................................. 3

2. PREPARATION FOR BARGAINING & INDUSTRIAL ACTION. .......................... 3 2.1 Value of research..................................................................................................... 3 2.2 The importance of density....................................................................................... 4 2.3 Internal systems & training on industrial action....................................................4 2.4 Co-ordination – Single Bargaining Units................................................................ 4 2.5 Labour hire & industrial action. ............................................................................. 4

3. ACCESSING PROTECTED ACTION – PROCEDURAL ELEMENTS..................... 5 3.1 Log of Claims & Negotiations.................................................................................. 5 3.2 Bargaining Periods. (s.423)...................................................................................... 5 3.3 Authorisations. (s.454(2) & s.446(1))....................................................................... 6 3.4 Protected Action Ballots. (s.449 ff.)......................................................................... 6 3.5 Protected Action Notices. (s.441)............................................................................. 9

4. PROTECTED ACTION – EXCLUSIONS. .......................................................... 10 4.1 Genuinely trying to reach agreement. (s.461(1)(a)&(b)) ...................................... 10 4.2 Pattern Bargaining. (s.439).................................................................................... 11 4.3 Claims for “prohibited content”. (s 436)............................................................... 11 4.4 Action in concert with un-protected persons. (s 438) ........................................... 12 4.5 Suspension & Termination of Bargaining Periods. (s 430 – 433 & s.498)........... 12

5. TYPES OF INDUSTRIAL ACTION. ................................................................. 13 5.1 Designing an Effective Campaign of Industrial Action. ....................................... 13 5.2 Strike pay and the 4 hour rule. (s.507).................................................................. 14 5.3 Bans & Limitations. ............................................................................................... 14 5.4 “Rolling” stoppages. .............................................................................................. 14 5.5 “Political” vs “Industrial” Action. ........................................................................ 14 5.6 The Status of Picketing.......................................................................................... 15

6. UNPROTECTED ACTION & SANCTIONS....................................................... 15 6.1 Civil Remedy Provisions........................................................................................ 15 6.2 S 496 Orders........................................................................................................... 16 6.3 The Common Law................................................................................................. 17

Attachment A - Research & Preparation Checklist............................................ 18 Attachment B – Bargaining Flowchart................................................................ 19

Copyright © National Union of Workers - Published by National Union of Workers. No part of these materials may be copied or reproduced, including in modified form, without acknowledgement of the Copyright Holder and the Author. Disclaimer - Reasonable care and skill was used in preparing this material. However, the NUW and the Author make no warranty as to the accuracy or completeness of these materials.


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1. INTRODUCTION.

“When a trade union embarks upon protected action it would do well to remember the Sword of Damocles which hangs by a twisted hair of detailed regulation and may at any time snap" Tony Slevin.

Under WorkChoices, accessing and implementing protected industrial action will require an increased amount of planning, attention to detail and technical acumen. The purpose of this paper is to analyse the technical requirements and discuss ways that industrial action can be taken in a manner that is both sustainable and effective.

The bad news.

WorkChoices restricts the availability of protected action, and limits its likely efficacy in a number of ways.1 First, the type of conduct that can be protected has been further limited and the list of conduct rendering action unprotected has been enlarged. Second, the Act establishes a complex and time consuming process to initiate action. This process gives employers extended notice of any action and gives them extensive opportunities to delay, restrict or prevent action. Finally, the scope for protected action to be stopped (on application by the employer and affected third parties or by Ministerial fiat) has been increased.

The range of new penalties for, and remedies against, unprotected action make such conduct more problematic for unions and their members. The cumulative effect of the provisions is to restrict access to protected action and to vastly increase the scope of remedies against industrial activity.

Don’t get too depressed……

Without understating the threat posed to industrial activity, it’s worth recalling that “protected action” is a very modern concept in Australian industrial law. In essence, prior to 1993 all strike action was contrary to Federal Legislation (although only strictly prohibited for a short period around the 1920’s). Only one State enacted a formal Protected Action system.2 Pre-1970 some strike action during the nominal term of a Federal Award was indirectly criminalised.3

Despite this all this, industrial action has always been a feature of our systems. When faced with no alternative, our members will still take industrial action to protect or advance their interests.

2. PREPARATION FOR BARGAINING & INDUSTRIAL ACTION.

2.1 Value of research.

As the legislation is designed to make things difficult for unions and employees, we need to do everything we can to gain an edge in bargaining. Traditionally, unions have often commenced bargaining and worried about problems as they arose. This is a luxury we can

1 For a useful discussion of these issues see McCyrstal, Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices, (2006) 16(2) ELRRev 193. 2 See s.174-181 Industrial Relations Act 1999 (Qld). Procedural barriers to litigation against strikes (which gave some measure of “protection”) has existed in various forms in some other States. See for example s.138 Fair Work Act 1994 (SA) & ss.140-142 Industrial Relations Act 1996 (NSW). 3 The old system of bans clauses and injunctive relief under the Federal law imported the notion of contempt of court.


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no longer afford. Having a clear understanding of the situation at each enterprise or site will improve access to sustainable protected action, enable us to get a better result for members and make the job of officials easier.

The NUW has developed a checklist of information to be gathered before bargaining commences. Some Branches have made collection of this information compulsory. The intention of the process is to ensure that informed decisions are made about the best strategy and tactics to adopt. The checklist appears as Attachment A to this paper. Officials are encouraged to use it to help answer the following questions:

• Do we have a comprehensive agreement to protect wages and conditions? If not, how do we get one?

• Can we coordinate our bargaining across sites, states or agreements?

• Is now the right time to bargain? Should we delay or otherwise co-ordinate to maximise leverage?

• What industrial action would be effective and sustainable?

2.2 The importance of density.

Density has always been the key to union power in a workplace. While bargaining in a low density environment is sometimes unavoidable it has obvious drawbacks. The protected action ballot system makes it an absolute necessity that unions have achieved appropriate density, and ensured the accuracy of membership records, prior to embarking on the procedural steps to access protected action. The days of worrying about your density the night before (or even during) a strike are over.

2.3 Internal systems & training on industrial action.

The technical complexity of the bargaining system requires each union to develop a system to ensure compliance with the Act. In particular, steps should be taken to ensure all claims, bargaining periods and related documents are checked and approved by suitably trained officials. Deliberate and considered decisions need to be made about such matters as initiating bargaining periods and taking protected action.

As some of the recent cases have illustrated, officials engaged in bargaining need a higher level of technical competence. Educating officials who are engaged in bargaining is vitally important to ensuring our members right to take industrial action. As an example, all NUW officials have had two training sessions on WorkChoices, one solely directed at bargaining and industrial action. The content of training needs to be carefully considered – blending technical and practical components.

2.4 Co-ordination – Single Bargaining Units.

Single bargaining units, while perhaps not as common as in the past, remain a feature in many industries. Given the procedural traps that exist, an higher level of co-operation and co-ordination between unions is now required. Communication between the officials directly involved in bargaining and those responsible for the technical processes is critical.

2.5 Labour hire & industrial action.

In some industries it is now rare to find an enterprise that does not use at least some agency workers, and the industry is growing at more than 20% per year. Members employed by


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labour hire agencies (who in practice often receive the benefits of site agreements) cannot participate in protected industrial action about negotiations for a “host” company enterprise agreement4. Where labour hire forms a significant or critical part of a host employers workforce, a strategy for dealing with this issue needs to be developed before industrial action is contemplated. This may involve the conduct of separate negotiations with the agency, although great care is needed around both genuinely trying to reach agreement and pattern bargaining.

3. ACCESSING PROTECTED ACTION – PROCEDURAL ELEMENTS.

A flow chart designed to illustrate the process for bargaining and protected action appears as Attachment B. It is used by the NUW in training for officials.

3.1 Log of Claims & Negotiations.

Almost all unions commence bargaining by providing the employer with a log of claims, endorsed by the members, detailing the matters to be dealt with in a union collective agreement. In the new system the log of claims and subsequent negotiations have additional procedural importance.

First, the inclusion of claims for “prohibited matters” must be avoided (see 4.3).

Second, the union must have genuinely tried, and be continuing to try, to reach an agreement in order to access and sustain protected action (see 4.1). Obviously, our conduct over the entire negotiating period goes to this question.

Finally, where unions have resolved to pursue some common claims across an industry, developing an adequate defence to a claim of pattern bargaining needs to be considered from the start of the bargaining process (see 4.2).

3.2 Bargaining Periods. (s.423)

The Bargaining Period provisions have not been fundamentally altered. A Bargaining Period must be in the required form, and specify the matters to be included in the agreement, the business or part of the business concerned, the type of employees to be covered by the agreement and the proposed expiry date (s.426). It must be served in writing on the employer and lodged with the AIRC. It comes into effect 7 calendar days after it is filed and served (s.427). A Bargaining Period can be initiated at any time, even before the nominal expiry date of an Agreement.

There can be no protected action outside a Bargaining Period (s.435). A Bargaining Period does not create an obligation on any party to bargain. The AIRC no longer has power to conduct conciliation during a bargaining period unless all parties consent to participate.

A bargaining period ends (s.428) when the union and employer reach agreement (note not when the agreement is approved by a valid majority of employees), when the notifying party withdraws5, or when it is otherwise terminated (see 4.5 below).

4 Their participation would render the action of the host company employees unprotected (see 4.4). 5 The AIRC can limit the ability of a Union to re-initiate if a bargaining period is withdrawn (s429).


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3.3 Authorisations. (s.454(2) & s.446(1))

Both an application for a Protected Action Ballot (s.454(2)) and any protected action itself (s.446(1)) must be authorised. Authorisations can be given by the relevant Committee of Management of the Union or (in the case of a ballot application) by an officer authorised under the rules of the union to do so.6

Authorisations cannot be given retrospectively. A statement concerning authorisation must be lodged with a PAB application. A Notice of Authorisation of protected action must be filed in the Registry of the Commission prior to the commencement of any protected industrial action.

Many Unions have adopted a procedure where a resolution authorising both an application for a PAB and protected action is considered at each BCOM meeting in respect of negotiations which have commenced since the previous meeting. The NUW uses the following pro-forma motion

That this Branch Committee of Management: (a) authorises the making of an application pursuant to Division 4 of Part 9 of the

Workplace Relations Act for a ballot of members on proposed protected action; (b) authorises the taking of industrial action; and (c) directs the Branch Secretary to take any action he considers appropriate or

necessary to implement these authorisations; in respect of members employed by: LIST EMPLOYERS

3.4 Protected Action Ballots. (s.449 ff.)

(a.) Introduction / Objects of Act

To be protected, industrial action must be authorised by a protection action ballot (“PAB”) (s.445). During a bargaining period, and after the nominal expiry date of any or all agreements biding on the employer and relevant employees, a union can apply for a PAB (s.451(3)). There is provision for applications to be heard and determined together (s.460).

The stated objective of the secret ballot provisions is to place the decision to take industrial action in the hands of the employees concerned. According to the Explanatory Memorandum to the Bill, “[t]he provisions are designed to be facilitative (ie to provide the means for accessing protected action) not prohibitive (ie to outline the circumstances in which such action is not available)”.7 The provisions should be interpreted and implemented consistent with allowing the taking of action.8

(b.) The Question to be Put.

The question to be determined in the ballot needs to be carefully drafted, as any action is limited to the type of action approved in the ballot (s.445(f)). The language used for protected action notices should be used. A number of forms of action can be authorised within one question, or multiple questions can be asked each authorising a single form of

6 Industrial Officers should familiarise themselves with any particular requirements of the rules of their union. The rules of many unions give the Secretary standing authority concerning proceedings in the AIRC. 7 Explanatory Memorandum, Page 221 Para 1393 The Commission can have regard to extrinsic materials for interpretative purposes (See s.15AB Acts Interpretation Act 1901 (Cth.)) 8 See for example AFMEPKIU v Amcor PR973236 at PN44 and United Collieries v CFMEU [2006] FCA 904 at PN19.


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action. In general unions appear to have adopted a practice of seeking indicative approval for the action via mass meeting before the application. The following is a sample question:

“In support of reaching a union collective agreement with your employer do you support the taking of protected industrial action against your employer in the form of an indefinite strike and overtime bans by stores employees at the Port Adelaide warehouse?”

(c.) Who can conduct the ballot. (s.480).

The default position in relation to a PAB is that the Australian Electoral Commission conducts the ballot. The Ballot can be conducted by another independent person (for example a retired Commissioner9), or a suitable official of the union supervised by an authorised independent advisor (one union utilised Senior Counsel10) if the Commission so determines. Utilisation of a ballot agent other than the AEC will require submissions as to the suitability and independence of the ballot agent and advisor.

(d.) Attendance vs Postal Vote. (s.464(2)&(3))

The PAB must be secret, and the default position is a postal ballot by declaration voting (as per union elections). The alternative, if the Commission can be persuaded that it is more efficient and expeditious, is an attendance vote. An attendance vote is conducted at the workplace but outside working time (in effect during meal breaks). Unions seem to have a strong and understandable preference for the latter option.

(e.) The Roll of Voters (s.466 & 467)

Only those members whose names where on the roll of voters can vote (s.475). The Commission must prepare the roll or direct the authorised ballot agent to prepare the roll (s.466). A person can only be included on the roll to vote (s.467) if they:

• Are a member of the union on the day the PAB order is made;

• Are an employee of the employer on the day the PAB order is made; and

• They would be subject to the Agreement being negotiated.11

In practice, the Commission is issuing orders that the union provide a list of members and the employer a list of relevant employees to the ballot agent. Those who appear on both lists are effectively the roll.

The roll must be closed two days before the vote is held or commences (s.463(1)(d)(i)).

(f.) Technical & Procedural Elements of PAB Application

The Commission has published a form for use in a PAB application. The application must identify the applicant and the target employer, specify the question or questions to be put, the type of employees and may identify the nominated ballot agent (s.452). The application must be accompanied by a copy of the Bargaining Period notice (s.453(1)(a)&(b)), a statement that the applicant officer is authorised to make the application (s.453(2)), and a declaration concerning prohibited content (s. s.453(1)(c), (4)&(5) and Reg. 9.7 Chapter 2).

9 CFMEU v United Collieries Pty Limited PR972190 10 CFMEU v H&G Glass PR972901 11 This, of course, excludes any employees bound by an AWA which has not passed its nominal expiry date.


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It has become common practice for Unions to file the following additional material with the application:

• A witness statement an official involved in the bargaining that attests to genuineness;

• Draft directions (sought ex parte) concerning the preparation of the roll and notification to employees; and

• A draft PAB Order.

Applications must be served on the employer within 24 hours of lodgement (s.454).

(g.) Timeframes & Directions.

The Commission is directed to hear and determine applications as quickly as possible, and where reasonably possible, within two working days of lodgement (s.457). The Commission has a general power to make orders and give directions in relation to an application (s.459). In fixing timetables or otherwise making orders, the Commission is required to consider the “desirability” of the ballot being declared within 10 days of the PAB order being made. (s.459(3)).

Prior to hearing the PAB application (and generally on application by the union) the Commission is issuing directions with indicative timeframes for production of the information for the roll, and directing the employer to post a notice advising the employees of the application.

(h.) The PAB Order.

A PAB takes place on order of the Commission (s.463). The key matters for determination or definition in the order are:

• The type of employees to which the application relates.

• The question to be asked (which is determined by the union).

• The name of the person conducting the ballot (and independent advisor if required).

• The voting method.

• The timetable for the ballot.

(i.) Ballot Outcome & Who Can Take What Action When. (s.478)

To be successful, a 50% turnout of eligible voters is required and a simple majority of those voting need to approve the action (s.478). The ballot is formally declared (s.476) and a report prepared by the ballot agent and independent advisor if any (s.477).

If the question to be put is carried, the action must commence within 30 days of the declaration unless this period is extended by the Commission. A protected action notice is still required (see 3.5). Only those members whose names where on the roll of voters can participate in the action.12

12 A member who joins after the ballot but before the strike is not protected. Action by an members is only protected if the action if the action is authorised by a secret ballot (s.445) and it appears clear that that authorisation is limited to persons on the roll. There are some alternative views on this, but the safer course is to assume that the roll defines the protected employees. Note that action in concert with unprotected persons renders all action unprotected (see 4.4)


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(j.) Outline of Submissions.

It is suggested that the following matters should be addressed in proceedings for a PAB:

• The Commission is required to order a Protected Action Ballot as the requirements of the Act and technical pre-requisites have been met.

• The application is in the required form and includes the required information in particular concerning the question to be put, the type of employees and the identity of the nominated ballot agent. (s.452)

• The union has standing to make the application. (s.451(3)(a))

• The existing agreement (if any) binding on the parties has passed its nominal expiry date. (s.451(2)(a))

• A bargaining period (s.423) exists between the parties, a written notice of which was filed and served in the required form, contains the required particulars (s.426) and is annexed to the application. (s.453(1)(a)&(b))

• The application was made by a duly authorised officer. (s.453(2))

• The application is accompanied by a declaration, in the required form, concerning the claims, which do not include claims for the inclusion of prohibited content. (s. s.453(1)(c), (4)&(5) and Reg. 9.7 Chapter 2).

• The necessary material has been filed and served as required. (s.454)

• In satisfaction of the requirement of the Act, proper notice has been given to the employer, the employees and the AEC in order that they may be heard on the application. (s.457(1) and 458(2))

• None of the “exclusions” as to protected action would apply to action approved by the proposed Protected Action Ballot. (ss.436-446)

• On the evidence (generally an Affidavit of the relevant official), the Commission should be satisfied that the applicant has and is genuinely trying to reach agreement with the employer. (s.461(1)(a) & (b))

• Granting the application is consistent with the objects of Division 4 of Part 9 of the Act and the “facilitative” intent of the Division. (s.461(2)(a) and the Explanatory Memorandum quoted above)

• The proposed timetable is consistent with the statutory scheme. (s.457 & 459(3)).

3.5 Protected Action Notices. (s.441)

As with Bargaining Periods, there has been no fundamental change. A union is reqired to give notice to the employer, in writing, of its intention to take protected industrial action. The default position remains 3 working days notice, however the Commission can order a longer period of up to seven days during the PAB application process (s.462) or a longer period as part of orders made concerning the suspension of bargaining periods (s.434(4)).


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Proper records sufficient to establish service (eg fax transmission receipts13) should be maintained.

The written notice must state the nature of the intended action (which includes the duration of the action and any limitations on who is taking the action) and the day when it will begin (s.441(6)). The nature of the action, which should be described as precisely as possible in “ordinary industrial English”, is intended to allow the employer to understand what is to occur and to take appropriate defensive action.14 (See the discussion below at 5.1-5.4).

The action in the notice must be consistent with the action approved by the members in the PAB. Each type of protected action authorised by the PAB must commence inside a 30 day period commencing from the declaration of the ballot unless that time is extended by order of the AIRC (s.478(1)(d)).15

4. PROTECTED ACTION – EXCLUSIONS.

4.1 Genuinely trying to reach agreement. (s.461(1)(a)&(b))

Before ordering a PAB the Commission must find that the Union has, and is, genuinely trying to reach agreement with the employer. Essentially, we need to have been bargaining in good faith.

The non-exhaustive list of factors to be considered by the Commission (s.421(4)) suggests that in the vast majority of cases this will be no issue at all. In essence, we must negotiate in a manner that gives attention to the particular circumstances of the enterprise, and conform to a pretty standard list of “good-faith” bargaining requirements. The factors16 are:

• Demonstrating a preparedness to negotiate an agreement which takes into account the individual circumstances of the business;

• Demonstrating a preparedness to negotiate an agreement with a nominal expiry date that takes into account individual circumstances of the business;

• Negotiating in a manner consistent with the wages and conditions of employment being determined as far as possible by agreement between the employer and employees at the level of the single business;

• Agreeing to meet face-to-face with the employer at reasonable times;

• Considering and responding to proposals made by the employer within a reasonable time; and

• Not capriciously adding or withdrawing items for bargaining.

In order to deal with this issue, Organisers should keep appropriate notes of discussions concerning claims, and in particular the details of an offers or counter offers made by the parties.

A development in relation to this exclusion concerns the simultaneously negotiation of prohibited matters to be included in some other form of Agreement. A recent decision of

13 Service by legible fax is sufficient. See the Full Bench in Re Transfield Obayashi, R3884. 14 Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550. 15 For a discussion of this requirement see United Collieries v CFMEU [2006] FCA 904. 16 See also the Full Bench in AIG v AFMEPKIU, T1982, which is referred to in the notes to s.430(2)


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SDP Acton has encouraged employers to take this point wherever unions are seeking to protect “prohibited matters” outside a workplace agreement.17 The reality is rather less concerning – Her Honour’s decision turned on the circumstances of the case and the particular (and very unfortunate) words used by an Organiser to the effect that industrial action would not occur if a side agreement was reached on prohibited content.

To avoid this issue, or at least to prevent it derailing protected action, negotiations around instruments to protect prohibited content should be conducted discretely from negotiations over union collective agreements. Appropriate training for officials conducting bargaining is critical. In appropriate circumstances, consider writing to the employer making clear that while the union seeks an agreement on some prohibited matters, that finalising the union collective agreement is not contingent on resolving those issues.

4.2 Pattern Bargaining. (s.439)

Industrial action cannot be protected where pattern bargaining is occurring. The very broad definition of pattern bargaining (s.421) includes seeking common wages or conditions of employment in two or more proposed collective agreements. It is a defence to an allegation of pattern bargaining if the union has genuinely tried to reach agreement.18 (See 4.1 on the “genuinely trying” issue.)

The pattern bargaining provisions certainly raise very serious problems for the traditional bargaining model used by some unions (but a minority). There are a number of points at which pattern bargaining conduct can derail industrial action.

s.431 A finding by the AIRC of Pattern Bargaining requires the suspension or termination of a bargaining period.

s.461(1) Before ordering a PAB the Commission must find that the Union has, and is, genuinely trying to reach agreement with the employer.

s.497 Injunctive relief in the Federal Court is available against industrial action (including threatened impending or probable action) involving pattern bargaining.

4.3 Claims for “prohibited content”. (s 436)

Great care needs to be taken to avoid making claims for the inclusion of “prohibited content” in a workplace agreement. Doing so removes the possibility of protected action and is subject to civil remedy even if no industrial action occurs (s.365). The prohibited matters are set out in the regulations (Division 7.1) and subject to amendment by the Executive without reference to the Parliament.

The most obvious way in which a union may inadvertently claim for prohibited content is by claiming to “call up” or directly incorporate a term of another document that is prohibited. For this reason claims such as “all terms of the Award be included in the Agreement” should be avoided – at a minimum the disputes procedure in any Award includes prohibited content.

17 CEPU & Anor v Cadbury Schweppes Australia Ltd, PR973290 18 Or if the conditions sort are Commission Test Case standards.


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4.4 Action in concert with un-protected persons. (s 438)

The prohibition on action in concert with un-protected persons (the former s.170MM) has been retained. This remains an issue of concern for unions operating in an SBU if one organisation fails to ensure “protected” status for its action or where action is taken by members employed by agencies engaged by a host employer who is the target of protected action. The new requirements concerning secret ballots (which authorise action only be the those on the voting roll) complicate matters.

4.5 Suspension & Termination of Bargaining Periods. (s 430 – 433 & s.498)

(a.) General

If a Bargaining Period is suspended or terminated, Protected Action cannot be taken or continue (s.435 & 437). There more scope for the AIRC to terminate or suspend bargaining periods on application by employers and affected third parties. These provisions are another example of where the discretion of the Commission has been removed or severely restricted.

In appropriate cases (for example where protected industrial action might plausibly have a severe affect critical on a industry, cause massive stand-downs, or affect the health and safety of the public) unions should plan a response in advance to any claim to terminate a bargaining period.

The powers of the Commission set out below (except in relation to pattern bargaining) are exercisable only where industrial action has occurred or, in come cases, where it has occurred or is being organised. The period of any suspension is at the Commission’s discretion (except in relation to s.433 where it is limited to 30 days plus one extension).

(b.) Commission must suspend or terminate bargaining period.(s.430 & 431)

The Commission must now suspending or terminate a bargaining period if a number of circumstances exist.

s.430(2)(a)-(b) A negotiating party is not genuinely trying to reach agreement.

s.430(2)(c) Failure to comply with AIRC direction or order (see also s.443).

s.430(3) The industrial action is threatening or would threaten to endanger the life, personal safety, health or welfare of the population or part of it, or cause significant damage to the Australian economy or part of it.

s.430(7) The industrial action is being organised or taken to support claims in respect of employees who will be subject to the agreement but who are not members or are not eligible to be members (see also s.438).

s.430(8) The industrial action largely concerns a demarcation dispute:).

s.431 Pattern bargaining is taking place (see also s.439 and s.497).

(c.) Cooling Off Periods. (s.432)

The Commission must suspend a bargaining period if it considers it appropriate having regard to whether the suspension would be (a) beneficial to assist the parties in resolving the dispute, (b)whether a suspension would contrary to the objects of the Act or the public


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interest, (c) the duration of the industrial action and (d) any other matter the Commission considers relevant.

(d.) Significant Harm to Third Parties. (s.433)

The Commission must suspend a bargaining period on application of an affected third party if it considers it appropriate. The Commission is required to consider the economic effects on the third party and any other matters it considers relevant.

(e.) Ministerial Declaration. (s.498)

The Minister has reserved to himself the power to terminate a bargaining period by declaration if he believes that industrial action is or would adversely affect the negotiating parties and would threaten to “endanger the life, personal safety or health, or the welfare” of part or all of the population, or that would cause significant damage to the economy.

4.6 Other Exclusions

Industrial action prior to the nominal expiry date (NED) of an Agreement cannot be protected action (s.440). In the case of transmitted agreements, including transmitted pre-reform agreements, the end of the 12 month “transmission period” (s.580 & Sch.9 Cl.4(4)) applies in lieu of the original NED. After that point neither the employer (s.585 & Sch. 9 Cl.10) or the employees (s.581& 582 and Sch.9 Cl.5 & 6) are bound. A failure to comply with orders made by the Commission during the bargaining period that relate to the negotiations or related industrial action renders action unprotected (s.443). WorkChoices does not override State laws in relation to essential services which deal with industrial action (s.16(3)(k)).

5. TYPES OF INDUSTRIAL ACTION.

5.1 Designing an Effective Campaign of Industrial Action.

There is a certain irony in the fact that WorkChoices, by reducing the opportunities for limited industrial action to be protected, effectively encourages full strike action. The time consuming process to access protected action (coupled with its complexity, rigidity and expense) requires us to telegraph our punch. In my view, this means that the most sustainable and effective action will be a strike of significant duration. When planning an industrial campaign consider the following issues.

(a.) Action Must Be Sustainable.

A campaign of protected industrial action must be practically sustainable and legally defensible. Practical sustainability means winning and keeping the hearts and minds of the membership (and sometimes the community at large). Internal control systems, attention to detail, and discipline from officials is necessary to ensure legal defensibility. Consider issues likely to arise in advance. For example, if your protected action will cripple a public transit network or prevent access to life saving drugs prepare to defend your bargaining period in advance.

(b.) Action Must Be Efficacious.

Industrial action is effective when it causes sufficient economic pain (or at least disruption) to force the employer to change its position on an issue. Make sure that any action you organise has the best possible chance of having this effect. Remember that members (and


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sometimes Orgainsers) often have a view that minor industrial action will cripple the employer – they are usually wrong. A clear understanding of the pressure points for the employer (and any alternatives to the work performed by our members) needs to be considered.

The type of industrial action taken needs to take into account the nature of the work members do. Limited stoppages or overtime bans may be effective in batch process, time sensitive or high overtime environments. In other contexts the traditional indefinite strike may be necessary to sufficiently hurt the employer.

5.2 Strike pay and the 4 hour rule. (s.507)

An employer is obligated not pay employees during any period of industrial action, and for a minimum of 4 hours regardless of the duration of the action. The prohibition on payment and on claiming payment for periods of industrial action (s.508) are civil remedy provisions (see 6.1).

5.3 Bans & Limitations.

While bans and other limitations can still be protected, the long and complex process to authorise such action counts against such action. Bans and limitations often need to be flexible to have the desired impact on employers. By removing some flexibility to impose and change bans at short notice, the system makes these tactics less effective.

The effect of the prohibition on payment for industrial action is that any stoppage of work (protected or otherwise) should be no less than 4 hours in duration. It also means that the imposition of any ban or limitation requires the employer to refuse payment (even if 90% of an employees functions are performed). This reduces the efficacy of bans and limitations as a form of protected industrial action (with the exception of overtime bans).

5.4 “Rolling” stoppages.

It seems clear that the language “rolling stoppages” in a protected action without further particulars as to timing and duration is insufficient.19 The approach of the Courts has been to consider the nature of the employers undertaking in deciding if the language in a notice gives adequate opportunity to take defensive action (see 3.5). To ensure protected action is sustainable, the timing, duration and frequency of stoppages should be specified in the notice.

5.5 “Political” vs “Industrial” Action.

In the context of the ongoing campaign against WorkChoices, it is worth briefly considering the possibility of a distinction between political and industrial action. While action that was political in nature was not exempt from remedies under the old act, the political character of action was a relevant factor going to the Commissions discretionary power to make orders under the former s.127.20 The effective removal of discretion concerning orders (s.496) and a tightening of both the definition of industrial action (s.420)

19 See Adelaide Brighton Cement v AWU [2002] FCA 1108. Although only an interlocutory judgement, it has been extensively quoted with approval in other proceedings. 20 See for example CEPU v Laing & Anor(1998) 86 IR 142 at 157 and BHP Steel v AWU Print S2496


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and the prohibition on action before the NED of an agreement (s.440 and 494)21 give us much less room to move. While the Commission has so far rejected attempts to place political action outside the scope of the statutory definition of industrial action,22 such arguments should be advanced as appropriate.

5.6 The Status of Picketing

The laws in relation to picketing have not been changed. Picketing does not fall within the statutory definition of industrial action and cannot be protected action.23 “Peaceful picketing” remains lawful, but “obstruction” or “besetting” (for example physically preventing access to premises for goods or people) is tortious and subject to remedies under the common law24 (see 6.3 below).

6. UNPROTECTED ACTION & SANCTIONS.

6.1 Civil Remedy Provisions

The Act makes extensive use of “civil penalty provisions”, including in relation to bargaining and industrial action. These impose obligations which, if breached, expose persons to pecuniary and other sanctions (eg injunctions and compensation). The civil standard of proof (balance of probabilities) rather than the criminal standard operates, and civil rules of evidence apply (s.729). Civil penalty provisions relevant to industrial action and bargaining include:

s.365 Seeking to include prohibited content in a workplace agreement

s.400 Prohibiting coercion and duress in bargaining

s.401 Prohibiting false or misleading statements in relation to bargaining

s.471 Requiring compliance with Orders etc concerning secret ballots.

s.494 Prohibiting industrial action before the nominal expiry date of agreement.25

s.496(10) Requiring compliance with order against industrial action.

s.507-509 Concerning the claiming or acceptance of strike pay

Employers can make application to the court under these provisions. Traditionally, disputes are settled on the basis of no further litigation between the parties. In practical terms this will continue. The independent standing of the OWS (s.405(1)(f)) to bring proceedings, and the demonstrated willingness of the Commonwealth to disturb even settled controversies (for example the Perth Railway dispute) is more of a threat.

21 The former Section 170MN prohibited industrial action during the life of an Agreement where such action was “for the purpose of supporting or advancing claims against the employer.” The new provisions apply to any action within the definition regardless of purpose. 22 Australia Post v CEPU, PR973255 and Nestle v AFMEPKIU, PR973247 23 Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 24 For a definition of unlawful picketing see Murphy J in Dollar Sweets Pty. Ltd. v. Federated Confectioners' Association of Australia & Ors. [1986] V.R 383, 388-389 25 An equivalent provision exists for Preserved State Agreements, Sch. 15, Cl.23.


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6.2 S 496 Orders.

(a.) General

The removal of the AIRC’s discretion concerning orders to prevent or stop industrial action means that orders against unprotected action are now automatic in all but name (s.496). As well as these orders being enforceable through proceedings (including for injunctive relief) in the Federal Court, breaches of such orders has been criminalised (s.814(3)). Depending on the sequence of the enforcement proceedings or prosecution, conduct could be the subject of both civil and criminal sanction against the same party (s.731 & 732).

(b.) Jurisdiction & Standing.

It remains the case that the Applicant for an order has carriage of the application, bears the risk of failure and must establish the jurisdiction of the Commission.26 The jurisdiction of the Commission to make an order should not be conceded unless unavoidable – the Applicant should be put to proof. The employer should be made to demonstrate that “ industrial action” (as defined, see s.420) is “happening” or “is threatened impending or probable” or “ is being organised” (s.496(1)(a)-(c)).

Application can be made by “a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action” (s.496(4)(a)). Although this is a pretty low bar to clear, any Applicant should be required to establish, via evidence, that they have standing to bring the application. The Commission also has a discretionary power to make Orders on its own motion.

(c.) Procedure & Interim Orders. (s.496(6)-(8))

The Commission must “as far as practicable” hear and determine an application within 48 hours. This does not prevent the Commission attempting conciliation, and most Members have retained the practice of making at least a cursory attempt at conciliation.

The Commission does not have a general power to dismiss the application (s.111(3)(a)). Although untested, it appears clear that the Commission retains an ability to adjourn an application indefinitely (s.111(1)(i)). Such a step would, however, require the Commission to consider whether or not to make an interim order.

If the application cannot be heard and determined within 48 hours the Commission must issue an interim order (to apply until the determination of the substantive application) unless the Commission is satisfied that it would be “contrary to the public interest to do so”27. Accordingly, the Commission has a discretion concerning interim orders, albeit on narrow grounds. Interim orders should be opposed, particularly where the union is able to establish a serious question as to jurisdiction, or other particular circumstances consistent with the public interest exist. Interim orders that amount to final relief should also be opposed.

In any event, the jurisdiction of the Commission must be properly determined before an interim order can be made- “[i]t is the first duty of a tribunal that is required to act

26 Coal & Allied (1997) 73 IR 311 at 317 27 Note that the “public interest” is not synonymous with the interests of the direct parties but must be determined independently. Matters such as the objects of the act and the maintenance of proper industrial standards are relevant. See the Full Bench in Kellogg Brown & Root Pty Ltd & Ors v Esso Australia Ltd, PR 955357.


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judicially that it satisfies itself as to its jurisdiction. That is so whether the issue is one of final or interlocutory relief.”28

(d.) Settlement of Orders.

Draft Orders prepared by employers are often poorly drafted and sought for absurdly long periods. Submissions, as appropriate, should directed at: (a) limiting the duration of order to a period consistent with the nature of the action, (b) ensuring that any protected action is exempted (see s.496(13)), and (c) confining the scope of the order to “industrial action” as defined (s.420) excluding, for example, picketing conduct. Given the serious consequences for parties if an order issues, great attention should be given to when the order takes effect and the sections of the order requiring service. Where members are engaged in wildcat action without the involvement of the union, or contrary to the advice of officials, the order should not be made against the union itself.29

6.3 The Common Law.

“Protected Action” gives immunity from any cause of action which would otherwise lie against the conduct under Federal or State Law (s.447), including tort claims.30

The traditional “industrial torts” that emerged from English common law continue to apply to some industrial conduct (for example inducing or procuring a breach of contract, civil conspiracy, intimidation, tort of illegal means etc). The repeal of Section 166A has removed the procedural (and temporal) barrier on the commencement of tort litigation. While claims in tort have rarely been pursued by employers they remain are a significant threat, as unions and their members taking unlawful industrial action may be liable to damages in the millions of dollars. Litigation in State Supreme Courts is ruinously expensive regardless of outcome.

Perhaps more significant is the inherent jurisdiction of the Common Law courts to issue injunctions against tortious conduct.31 The most usual form of injunctive relief sought is a prohibitory order against industrial action or related conduct like picketing. Injunctions against industrial activity often have the effect of ending any dispute in the employers favour (for example by requiring a strike to end). Injunctive relief may be the sole substantial remedy sought, and the practical result of any injunction is often that the applicant obtains final relief without a substantive hearing of the case on its merits. 32

We have always had to dance around these laws, and some increasingly fancy footwork may be needed. When faced with an actual or seriously threatened tort claim (whether in relation to a dispute per se or a symptom like picketing) unions need to make a considered judgement about whether to suspend, cease or alter action to avoid injunctions or damages.

28 Silcar v AFMEPKIU &Ors, PR 959752 at PN22 29 For example, in the recent MV Stolt case the employer did not pursue the MUA. If the applicant presses hard it has proved difficult to avoid an order binding the union regardless of the conduct of officials. See Inghams Enterprises (Thomastown) & AMIEU Certified Agreement 2005, PR960210. Lawler VP holding, in effect, that binding the union was necessary to ensure the efficacy of the order. 30 Except clams in relation to personal injury, damaging or destroying property, the unlawful taking keeping or use of property or defamation. In addition to tort immunity, employees are also protected from dismissal or “injury in employment”. (s.448) 31 E.g. Supreme Court Act 1986 (Vic) s37 32 The test for interlocutory injunctions (whether there is a serious question to be tried and whether the balance of convenience favours the grant of an injunction) is the same even if such an order effectively disposes of the proceedings. See Bradto Pty Ltd v State of Victoria [2006] VSCA 89


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Attachment A - Research & Preparation Checklist

About the employees.

• How many direct employees are there?

• How many are members?

• How many agency employees are there?

• How many agency employees are members?

About the Employers.

• What legal entity is the employer?

• Is there more than one employing entity?

• Who is the owner of the employer?

• Are there related companies?

• Who is/are the labour hire agencies?

• Do we have agreements with the agency?

About the Work.

• What industry is it & is it seasonal?

• Who are the major customers?

• Who are the major suppliers?

• Who are the major competitors?

About the Union/s.

• Which Award (if any) applies?

• Do we have other Agreements?

• When do these agreements expire?

• Are there other agreements (eg MOU’s) ?

• Do I have copies of all these agreements?

• Do we have Agreements with subsidiaries?

• Are there other unions on site?

• What agreements do other unions have?

• Do I have copies of these agreements?

Deciding How & When to Bargain.

• Do we have a comprehensive agreement to protect wages and conditions?

• If not, how do we get one?

• Can we coordinate our bargaining across sites / states and/or agreements?

• Is now the right time to bargain? Should we delay or co-ordinate to maximise leverage?

• What industrial action would be effective and sustainable?


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Attachment B – Bargaining Flowchart

Log of Claims

Bargaining Period Served

Notice of Protected Action

Protected Action Starts

Negotiations

Must be a genuine attempt to reach agreement.

Not before expiry date of current agreement.

3 -7 days

Not more than 30 days

Ballot Application to AIRC

Secret Ballot

Ballot Result Declared

Starts after 7 days

Authorisation

NCOM / BCOM

Notice to AIRC

Must Occur Before

Checked by I.O. for

Prohibited Matters

Approved by Secretary Checked by IO

Decision by Secretary

Determined within 2 days if possible

Ballot Order made

Authorisation

NCOM / BCOM

industrial action avenues & obstacles

Documents