Tuesday, 14 November 2017

Are There Limits To Employee Industrial Action?

If negotiations for a new enterprise agreement break down, unions and workers cannot simply choose any form of protest they want and call it “industrial action.” Before lawful industrial action can be taken, bargaining representatives need to pass a protected action ballot with a majority of the workforce they represent.

Typically, unions use a protected action ballot to list a whole range of consequences such as strikes or partial work bans. However, occasionally unions can make oppressive, outrageous or even bizarre proposals in the guise of industrial action. The aim is usually to put pressure on an employer and try to swing the course of enterprise agreement negotiations.

The good news is that employers do not need to take such proposals lying down.

“Industrial action” as defined within the Fair Work Act, must relate to the performance of work or the adoption of a work practice in a different manner than usual, resulting in a delay, restriction or limitation in the performance of work. Action which falls outside this definition is not considered to be protected industrial action. This means that employers can challenge elements of protected action ballots where they do not meet this definition and restrict the protest options available to those voting in the ballot.

Mornington Peninsula Shire Council recently challenged and was successful in eliminating a number of undesirable proposals contained in a protected action ballot championed by the ASU.

The Council successfully objected to the following provisions in the protected action ballot, including indefinite or periodic industrial action in the form of:

  • Performing work while wearing campaign material and/or badges.
  • Wearing casual clothes.
  • A ban on wearing uniform.
  • A ban on the wearing of name badges.

The Full Bench held that none of the proposals could be considered industrial action. This was because a change to, or a restriction of, the clothing worn by employees would not constitute a change of actual work practices or any other limitation on work performed. As a result, those sections of the protected action ballot were struck out and could not constitute part of any upcoming industrial action taken by employees. The Council was able to effectively halve the options for industrial action. This would likely have improved the Council’s bargaining position in further negotiations.

Lessons for Employers

Employers should consider adopting a strategic approach towards enterprise agreement negotiations as a whole. In the event that employees threaten to take industrial action, employers should give real consideration to each and every proposal contained in a protected action ballot.

Next time a union or employee puts forward a protected action ballot in your workplace, do not throw your hands up and concede that a strike is the guaranteed outcome. Instead, review the list of claims on the protected action ballot and whether the proposals are permissible forms of industrial action.

If necessary, obtain advice to determine if there are elements worth challenging. As Mornington Peninsula Shire Council recently demonstrated, suggested forms of industrial action will not always withstand the scrutiny of the Fair Work Commission. There can be no doubt that employers who actively participate in enterprise agreement negotiations and protected action ballots can achieve better outcomes for their business and employees in their enterprise agreements.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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