Protected Industrial Action

In discussions between lawful and unlawful industrial action there is a limited understanding of when a strike or other forms of industrial action are lawful. Furthermore unions and employees can be stopped from engaging in industrial action which is completely legal.

Under the Fair Work Act 2009 (“the FW Act’) there are two types of industrial action. Protected action and industrial action that is “Unprotected.”

“Unprotected Industrial Action” is not lawful. Employees involved in this type of industrial action can be sacked and potentially face third party actions at common law. Whether industrial action is protected action or not is determined by the FW Act.

Protected industrial action requires employees to be bargaining for an enterprise agreement.  Protected action can only be taken in support of claims for an enterprise agreement (“EBA”) by employees in a workplace where an EBA has expired or where there was no previous EBA in place. Before unions and /or employees can take protected industrial action, they need to have bargained in good faith with their employer and genuinely tried to have reached an agreement. To do this  Unions and/ or bargaining agents have to submit their log’s of claims and schedule meetings in attempt to negotiate an EBA.

Even if these criteria are met, protected industrial action cannot occur without  a protected action ballot order (“PABO”). Industrial action will not be protected unless it is authorized by a majority of employees who will be covered by the EBA. This is the only way industrial action can be authorised.  A PABO determines how this ballot will be held including requirements  the ballot must be conducted by either the Australian Electoral Commission (AEC) or another independent entity which conducts ballots.

Applications for PABO’s have to be made to the Fair Work Commission (the Commission). Any requests for a body other than the AEC to conduct the ballot  must be included in an application for a PABO and approved by the Commission.  At least 50% of the employees on the roll of voters for the ballot to take industrial action need to have voted. More than 50% of the valid voters involved in a protected action ballot need to have approved the proposed industrial action.

Even if a majority of employees support the taking of protected industrial action, there is a further requirement for the employer to give three clear days notice of the date and time on when protected industrial action will commence. Industrial action that was not approved by the ballot or is outside the scope of action proposed in a PABO Application cannot be taken. In a nut shell, the only industrial action which employees can take to ensure industrial action is protected, is action which they have voted for.

The recent decision of the Fair Work Commission to suspend industrial action by staff of Sydney Trains was made despite the fact that the Rail Tram Bus Union and other relevant unions having  complied with all required the processes under the FW Act. Whilst a subsequent ballot that took place via text message drew some media attention, the Unions had complied with their obligations to hold a protected action ballot and all other legal requirements.  Put simply, the Sydney Train Strike which the Commission stopped, was completely legal.

Suspending a Legal Strike

The Commission was able to suspend the Sydney Train Strike under the provisions of s423 and s434 of the Fair Work Act on the basis that:

  1. The action would have caused significant economic harm to the Sydney economy
  2. The action would have been likely be likely to threaten the welfare of the population of Sydney

This is an unusual step for the Commission to take. Undoubtedly there was public concern regarding being inconvenienced, particularly given the fact that a significant number of people in Sydney rely on rail services to get to and from work and/ or education facilities. However  industrial action inevitably causes some economic damage to the employer and may cause inconvenience to the public at large. This is something that our industrial relations system permits.

Customers of a business or patrons of a service will often be impacted by industrial action.  It’s the pressure of this inconvenience which gives employees leverage in bargaining. The question of how significant the impact needs to be before the Commission  steps  in requires the making of a subjective decision. Such decisions will inevitably provoke controversy since the bargaining position of one side or the other in negotiations for an EBA will almost always be altered in one party’s favour, which in this case was to the employees and their unions detriment.

The Sydney Trains decision seems to have imposed  yet more limitations on the right to take protected industrial action, in a system which already places significant constraints on workers’ rights to strike. The outcome of future applications to stop protected industrial action will determine just how far those limitations go.

This blog has been co-written by our 2 employment experts; Tim Kucera, Senior Associate of our Perth office.