Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

Protected industrial action

The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their social and economic interests. These interests relate not only to better working conditions and collective demands of an occupation nature, but also to seeking solutions to economic and social policy questions and labour problems of any kind that are of direct concern to the workers.⁴⁰⁷

In the ordinary setting, employees have very little capacity to decline to work in response to a lawful and reasonable instruction from management. Where an employee refuses to perform work and their refusal is neither:

• 
  Because the instruction is not lawful or reasonable;
  
• 
  Based on a reasonable concerning about an imminent risk to his or safety; or
  
• 
  Participation in protected industrial action.
  

The worker faces civil proceedings under the FW Act and/or contract law (including the imposition of penalties) as well as termination of employment. Therefore, questions of what does and should constitute protected industrial action, and the means by which such action may be initiated, are important ones.

For employees and their representatives, obtaining legal sanction to participate in protected industrial action in pursuit of a collective agreement is subject to a myriad of technical and bureaucratic strictures. As argued by McCrystal in her book, The Right to Strike in Australia, it is highly doubtful that the degree of prescription relating to taking protected action under the FW Act is consistent with Australia’s international labour standard obligations.⁴⁰⁸ Indeed, the restrictions imposed by our laws on the right to strike are clearly substantial. They have drawn pointed commentary from the ILO supervisory structure on a number of occasions, including describing the protected action ballot process as “excessive”⁴⁰⁹ and observing that many of the consequences of “legitimate strikes”⁴¹⁰ that our legal system uses as trigger points to cancel lawful industrial action “…do not justify restrictions on the right to strike”.⁴¹¹

The process surrounding employees taking “protected industrial action”⁴¹² was made inherently more difficult with the introduction of the legislative requirement for a secret ballot of employees authorising the industrial action prior to it being taken. Forming part of the “Work Choices” amendments introduced by the Howard Government in 2006, the concept of the “protected action ballot” appears to be predicated on the dubious proposition that rank and file union members are generally more reluctant to engage in industrial action than their more radical union leaders and therefore instituting a secret ballot requirement will naturally lessen the prospect of industrial action occurring.⁴¹³

The question of whether there should be some form of a strike ballot in Australian labour law is a far less controversial one than the question of what form the strike ballot provisions should take. Pursuant to Article 10 of its Constitution, the ILO has published Labour Legislation Guidelines to assist those involved in formulating and reviewing labour legislation to reflect ILO conventions. These explicitly deal with the issue of strike ballots, as follows:

“The requirement to hold a strike ballot before calling a strike is intended: to ensure that labour relations, including industrial action, are carried out in an orderly fashion; to reduce the likelihood of wildcat strikes; and to ensure democratic control over an important decision for the workers concerned. Often, whether or not the legislation sets out this requirement, provision is made in trade union rules for the holding of strike ballots.

In countries where the right to strike is a collective right, and therefore subordinate to a trade union decision, there is often a legal obligation for a union to hold a strike ballot before a strike is called and for a specific majority of the workers concerned to approve the strike. Provisions of this type are in accordance with the principles of freedom of association where they are not such as to make the exercise of the right to strike very difficult or even impossible in practice. In particular, legislative provisions on this subject should ensure that:

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  the quorum and the majority required are reasonable and not such as to make the exercise of the right to strike very difficult or even impossible in practice;
  
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  account is only taken of the votes actually cast in determining whether there is a majority in favour of a strike.” ⁴¹⁴ (emphasis added)
  

The current law goes beyond the requirements of industrial democracy (that in any event are independently met by the requirement and practical necessity that Registered Organisations function democratically). It relevantly provides as follows:

Section 443

1. 
   The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
   

1. 
   an application has been made under section 437; and
   

(b)  the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2)  The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

The complex rules governing the taking of protected industrial action⁴¹⁵ could scarcely be described as:

…a fair, simple and democratic process to allow a bargaining representative to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement.⁴¹⁶

There are a number of pre-conditions that must be satisfied before union members are entitled to take protected industrial action. These are:

1. 
   That the nominal expiry date of any existing collective agreement binding the union members at a single enterprise has passed.⁴¹⁷
   

2. 
   The union⁴¹⁸ (called the ‘bargaining representative”) is genuinely trying to reach agreement for a proposed single enterprise agreement⁴¹⁹ (protected industrial action is not available in support of multi enterprise agreements).
   

3. 
   The union is not pursuing a pattern-bargaining claim, non-permitted matters or unlawful claims and the industrial action does not relate to a demarcation dispute.⁴²⁰
   

4. 
   A protected action ballot order has been issued by the FW Commission⁴²¹ and a majority of employees to be covered by the proposed enterprise agreement have endorsed the forms of industrial action proposed by the union in the ballot.⁴²²
   

5. 
   The forms of industrial action proposed by the union and endorsed by employees commence within 30 days after the declaration of the ballot result.⁴²³ If any form of industrial action endorsed by employees does not commence within this period, the right to take that action lapses, unless the FW Commission grants an extension of up to another 30 days from the ballot declaration date.⁴²⁴
   

6. 
   Prior to the taking of protected industrial action, the union gives the employer three clear working days (excluding weekends and public holidays⁴²⁵) written notice of the intention of employees to take industrial action and the nature of that action.⁴²⁶
   

Once these criteria have been met, employees are entitled to take protected industrial action. The FW Act refers to this action as ‘employee claim action’.⁴²⁷

The complexity of the requirements governing the taking of protected industrial action contains a number of openings for interference to be run by objecting employers, even when all the preconditions described above appear to have been met.

The main areas exploited by employers in this regard are the point of a union seeking approval for a ballot of its members to be held; and secondly, at the point at which the union issues a notice of its intention to take specified industrial action.

The case study below, dealing with the litigation surrounding a bargaining dispute between EnergyAustralia Yallourn Power Station and its operator employees, represented by the Construction, Forestry, Mining and Energy Union (‘CFMEU’) is a salient example of how employers are able to exploit the complexities of the rules surrounding protected industrial action.