Industrial action

The Fair Work Act describes industrial action as any of the following:

  • employees performing their work differently to the way it is normally performed, resulting in a limitation on, or delay in, the performance of the work
  • employees placing a ban, limitation or restriction on the performance of work or the acceptance of work
  • employees failing or refusing to attend or perform work
  • employers locking out employees from their employment.

Industrial action does not include action taken by one party which is authorised or agreed to by the other party, or action based on a reasonable concern of an employee about an imminent risk to his or her health or safety.

The Fair Work Act distinguishes between ‘protected’ (lawful) industrial action taken during bargaining for a new enterprise agreement and ‘unprotected’ (unlawful) industrial action.

Protected industrial action is taken so that employees or employers can support or advance their claims during bargaining in relation to a proposed enterprise agreement.

For industrial action to be protected, a majority of employees must approve a list of proposed actions in a secret ballot process, called a protected action ballot. The Commission can order a protected action ballot if satisfied that the employees’ bargaining representative has been and is genuinely trying to reach agreement with the employer.

The Commission may make orders to stop or prevent protected industrial action in specified circumstances. The Commission must suspend or terminate protected industrial action where it is endangering the life, personal safety, health or welfare of the population or part of it, or is causing significant damage to the Australian economy. The Commission must, as far as practicable, determine these applications within five days of lodgment, or make an interim order suspending the action if this timeframe cannot be met.

Where industrial action, or threatened industrial action, is unprotected, an application can be made to the Commission to stop or prevent it. The Commission must determine these applications within two days of lodgment, or make an interim order stopping the action within two working days.

Performance

The number of applications in relation to industrial action increased by 9 per cent, to 863 in 2017–18 from 794 in 2016–17, as shown in Table 26.

The Commission published an industrial action benchbook on its website in March 2017. In 2017–18, the benchbook was viewed or downloaded 25,881 times.

Consistent with results in previous years, the most common types of applications lodged were applications for a protected action ballot order (67 per cent) and applications to extend the 30-day period in which industrial action is authorised by a protected action ballot (15 per cent). Applications for the variation or revocation of a protected action ballot order made up 9 per cent of cases in 2017–18, compared with 6 per cent in 2016–17.

In 2017–18, the Commission received 54 applications for an order to stop or prevent industrial action that is not (or would not be) protected industrial action. That total was higher than the 43 applications lodged in 2016–17 but just over half the number in 2014–15, indicating a significant decline in unprotected industrial action cases over a four-year period.

Table 26: Industrial action—applications lodged and finalised
  No. lodged No. finalised
Matter type 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.418—Application for an order that industrial action by employees or employers stop etc 54 43 67 107 51 49 61 108
FWA s.419—Application for an order that industrial action by non-national system employees or employers stop etc 0 0 0 0 0 0 0 0
FWA s.423—Application to suspend or terminate protected industrial action—significant economic harm etc 1 2 1 0 2 0 1 0
FWA s.424—Application to suspend or terminate protected industrial action—endangering life etc 9 8 14 16 9 8 14 16
FWA s.425—Application to suspend protected industrial action—cooling off 4 6 3 0 4 7 2 0
FWA s.426—Application to suspend protected industrial action—significant harm to third party 2 0 0 1 0 0 0 1
FWA s.437—Application for a protected action ballot order 579 537 960 641 583 537 962 648
FWA s.447—Application for variation of protected action ballot order 27 7 21 6 27 7 21 6
FWA s.448—Application for revocation of protected action ballot order 53 37 48 44 53 38 48 44
FWA s.459—Application to extend the 30-day period in which industrial action is authorised by protected action ballot 130 150 154 133 137 148 152 137
FWA s.472—Application for an order relating to certain partial work bans 4 4 4 7 6 2 4 7
Total 863 794 1,272 955 872 796 1,265 967

FWA = Fair Work Act

Note: The number of applications finalised does not equal the number of applications lodged in the financial year because some applications are finalised outside the year in which they are lodged.

Timeliness

To ensure that applications are dealt with quickly, Members may hear matters out of hours, including on weekends. If an application seeking an order that industrial action stop cannot be determined within two days, the presiding Member can issue an interim order.

In 2017–18, the Commission either matched or improved its performance in 2016–17, as set out in Table 27. During 2017–18, the Commission streamlined some of its administrative processes for protected action ballot orders, contributing to the reduction of one day in time take from lodgment to determination of applications for a protected action ballot order compared with 2016–17.

Table 27: Industrial action—timeliness, protected action ballot orders and orders to stop action
  Days elapsed
  In 50% of matters In 90% of matters
Process Key performance indictor 2017–18 2016–17 2015–16 2014–15 2017–18 2016–17 2015–16 2014–15
FWA s.418—Application for an order that industrial action by employees or employers stop etc.—lodgment to first hearing 2 days 1 1 1 1 2 3 3 3
FWA s.437—Application for a protected action ballot order—lodgment to first hearing 5 days 4 4 4 3 7 8 8 9
FWA s.437—Application for a protected action ballot order—lodgment to determination 5 days 3 4 6 3 7 9 8 7

FWA = Fair Work Act

Significant decision—suspension of railway workers’ protected industrial action

In January 2018 workers at Sydney Trains and NSW Trains imposed overtime bans and advised that they were intending to take further protected industrial action by stopping work for 24 hours. The industrial action was taken in support of negotiations for new enterprise agreements. The Commission was satisfied that the 24‑hour stop work would cause significant economic damage, and issued an order to suspend all protected industrial action for six weeks, giving the parties an opportunity to conclude their agreement negotiations.

The Commission heard evidence about safety risks and the impact of the proposed 24‑hour stop work on workers, emergency services, students, tourists and the economy. Over one million railway journeys would not take place, with approximately 420,000 journeys in the morning peak and another 440,000 in the afternoon peak affected. The likely cost to the economy was significantly more than $90 million. You can read the decision in Sydney Trains; NSW Trains v The Hon. Dominic Perrottet, Minister for Industrial Relations (New South Wales) at [2018] FWC 632.