In brief - How employers may minimise impact of industrial action

Industrial disputes in Australian workplaces are on the rise, with the number of working days lost to disputation at the highest levels since 2013. Industrial action has been particularly prevalent in the manufacturing and construction industries. 
Employers who have enterprise agreements due to nominally expire in the next six months should plan a re-negotiation strategy well in advance in order to minimise the impact and consequences of industrial action. 

What is protected industrial action? 

The Fair Work Act 2009 (Cth) regulates the ability of employees and employers to take and respond to industrial action. Employees are able to take protected industrial action to support or advance claims for a new enterprise agreement, provided that action is authorised by a protected action ballot order made by the Fair Work Commission. 
Protected industrial action by employees includes the following actions:
  • The performance of work in a way that is different from the way in which work is usually performed or adopting a practice in relation to work that results in a restriction or limitation on or delay in the performance of work. 
  • A ban, limitation or restriction on the performance of work or on the acceptance of work. 
  • A failure or refusal to attend for work or a failure or refusal to perform work by the employees who attend for work.
The Fair Work Act provides a range of options for employers to respond to protected industrial action, including locking out employees, or means of suspending or stopping the action in certain situations. 

Australian Bureau of Statistics data shows increase in number, participation and days lost to industrial disputes

Recent data from the Australian Bureau of Statistics (ABS) indicates the following industry trends relating to industrial disputes:
  • Industrial disputes have increased over the last few months. In the June quarter 2017 there were 47 industrial disputes, compared to 32 in March quarter 2017. 
  • Participation in industrial disputes has increased. The number of employees involved in industrial disputes in June quarter 2017 was 27,800, an increase from 22,700 in March quarter 2017. 
  • Days lost to industrial disputes is at the highest level since mid 2013. There were 40.2 working days lost (per thousand employees) due to industrial disputation in the June quarter 2017, an increase from 25.6 in the March quarter 2017.
  • The manufacturing industry accounted for 36% of total working days lost in the June quarter 2017. Other industries recording a high number of working days lost due to industrial action included construction and mining. 
  • Victoria had the highest number of working days lost of any state or territory in June quarter 2017, accounting for 55% of total working days lost.
View the Industrial Disputes, Australia, Jun 2017 ABS data in more detail.

Payment during periods of industrial action 

When an employee engages in protected industrial action, employers must deduct the employee’s pay for the period of industrial action. 

Employers should plan enterprise bargaining negotiations well in advance of nominal expiry date

A large number of enterprise agreements are due to nominally expire on 30 June 2018 covering employers and employees in all industries. Once the nominal expiry date passes, employees can take protected industrial action to support or advance claims in respect of an agreement that will cover them. 
Given the increase in industrial disputes, we recommend employers start planning for enterprise bargaining negotiations 6 months prior to the nominal expiry date in enterprise agreements. A carefully planned industrial strategy may serve to minimise the disruption caused by strikes and other disputation. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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