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INDUSTRIAL ACTION Avenues & Obstacles INDUSTRIAL ACTION Avenues & Obstacles Paper for the 2nd ACTU Industrial Officers Conference Sydney, 25-26 July 2006 Tim Lyons Senior Advocate National Union of Workers Industrial Action : Avenues & Obstacles TABLE OF CONTENTS 1. INTRODUCTION. ............................................................................................. 3 The bad news. ........................................................................................................................ 3 Don’t get too depressed…… ................................................................................................. 3 2. PREPARATION FOR BARGAINING & INDUSTRIAL ACTION. .......................... 3 2.1 Value of research. .................................................................................................... 3 2.2 The importance of density. ...................................................................................... 4 2.3 Internal systems & training on industrial action. ................................................... 4 2.4 Co-ordination – Single Bargaining Units. ............................................................... 4 2.5 Labour hire & industrial action. ............................................................................. 4 3. ACCESSING PROTECTED ACTION – PROCEDURAL ELEMENTS..................... 5 3.1 Log of Claims & Negotiations.................................................................................. 5 3.2 Bargaining Periods. (s.423) ...................................................................................... 5 3.3 Authorisations. (s.454(2) & s.446(1)) ....................................................................... 6 3.4 Protected Action Ballots. (s.449 ff.) ......................................................................... 6 3.5 Protected Action Notices. (s.441) ............................................................................. 9 4. PROTECTED ACTION – EXCLUSIONS. .......................................................... 10 4.1 Genuinely trying to reach agreement. (s.461(1)(a)&(b)) ...................................... 10 4.2 Pattern Bargaining. (s.439) .................................................................................... 11 4.3 Claims for “prohibited content”. (s 436) ............................................................... 11 4.4 Action in concert with un-protected persons. (s 438) ........................................... 12 4.5 Suspension & Termination of Bargaining Periods. (s 430 – 433 & s.498) ........... 12 5. TYPES OF INDUSTRIAL ACTION. ................................................................. 13 5.1 Designing an Effective Campaign of Industrial Action........................................ 13 5.2 Strike pay and the 4 hour rule. (s.507) .................................................................. 14 5.3 Bans & Limitations. ............................................................................................... 14 5.4 “Rolling” stoppages. .............................................................................................. 14 5.5 “Political” vs “Industrial” Action. ........................................................................ 14 5.6 The Status of Picketing .......................................................................................... 15 6. UNPROTECTED ACTION & SANCTIONS. ...................................................... 15 6.1 Civil Remedy Provisions ........................................................................................ 15 6.2 S 496 Orders........................................................................................................... 16 6.3 The Common Law. ................................................................................................ 17 Attachment A - Research & Preparation Checklist............................................ 18 Attachment B – Bargaining Flowchart................................................................ 19 Copyright © National Union of Workers - Published by National Union of Workers. No part of these materials may be copied or reproduced, including in modified form, without acknowledgement of the Copyright Holder and the Author. Disclaimer - Reasonable care and skill was used in preparing this material. However, the NUW and the Author make no warranty as to the accuracy or completeness of these materials. 06-116-crt.doc -2- 27/07/2006 Industrial Action : Avenues & Obstacles 1. INTRODUCTION. “When a trade union embarks upon protected action it would do well to remember the Sword of Damocles which hangs by a twisted hair of detailed regulation and may at any time snap " Tony Slevin. Under WorkChoices, accessing and implementing protected industrial action will require an increased amount of planning, attention to detail and technical acumen. The purpose of this paper is to analyse the technical requirements and discuss ways that industrial action can be taken in a manner that is both sustainable and effective. The bad news. WorkChoices restricts the availability of protected action, and limits its likely efficacy in a number of ways.1 First, the type of conduct that can be protected has been further limited and the list of conduct rendering action unprotected has been enlarged. Second, the Act establishes a complex and time consuming process to initiate action. This process gives employers extended notice of any action and gives them extensive opportunities to delay, restrict or prevent action. Finally, the scope for protected action to be stopped (on application by the employer and affected third parties or by Ministerial fiat) has been increased. The range of new penalties for, and remedies against, unprotected action make such conduct more problematic for unions and their members. The cumulative effect of the provisions is to restrict access to protected action and to vastly increase the scope of remedies against industrial activity. Don’t get too depressed…… Without understating the threat posed to industrial activity, it’s worth recalling that “protected action” is a very modern concept in Australian industrial law. In essence, prior to 1993 all strike action was contrary to Federal Legislation (although only strictly prohibited for a short period around the 1920’s). Only one State enacted a formal Protected Action system. 2 Pre-1970 some strike action during the nominal term of a Federal Award was indirectly criminalised. 3 Despite this all this, industrial action has always been a feature of our systems. When faced with no alternative, our members will still take industrial action to protect or advance their interests. 2. PREPARATION FOR BARGAINING & INDUSTRIAL ACTION. 2.1 Value of research. As the legislation is designed to make things difficult for unions and employees, we need to do everything we can to gain an edge in bargaining. Traditionally, unions have often commenced bargaining and worried about problems as they arose. This is a luxury we can 1 For a useful discussion of these issues see McCyrstal, Shifting the Balance of Power in Collective Bargaining: Australian Law, Industrial Action and Work Choices, (2006) 16(2) ELRRev 193. 2 See s.174-181 Industrial Relations Act 1999 (Qld). Procedural barriers to litigation against strikes (which gave some measure of “protection”) has existed in various forms in some other States. See for example s.138 Fair Work Act 1994 (SA) & ss.140-142 Industrial Relations Act 1996 (NSW). 3 The old system of bans clauses and injunctive relief under the Federal law imported the notion of contempt of court. 06-116-crt.doc -3- 27/07/2006 Industrial Action : Avenues & Obstacles no longer afford. Having a clear understanding of the situation at each enterprise or site will improve access to sustainable protected action, enable us to get a better result for members and make the job of officials easier. The NUW has developed a checklist of information to be gathered before bargaining commences. Some Branches have made collection of this information compulsory. The intention of the process is to ensure that informed decisions are made about the best strategy and tactics to adopt. The checklist appears as Attachment A to this paper. Officials are encouraged to use it to help answer the following questions: · Do we have a comprehensive agreement to protect wages and conditions? If not, how do we get one? · Can we coordinate our bargaining across sites, states or agreements? · Is now the right time to bargain? Should we delay or otherwise co-ordinate to maximise leverage? · What industrial action would be effective and sustainable? 2.2 The importance of density. Density has always been the key to union power in a workplace. While bargaining in a low density environment is sometimes unavoidable it has obvious drawbacks. The protected action ballot system makes it an absolute necessity that unions have achieved appropriate density, and ensured the accuracy of membership records, prior to embarking on the procedural steps to access protected action. The days of worrying about your density the night before (or even during) a strike are over. 2.3 Internal systems & training on industrial action. The technical complexity of the bargaining system requires each union to develop a system to ensure compliance with the Act. In particular, steps should be taken to ensure all claims, bargaining periods and related documents are checked and approved by suitably trained officials. Deliberate and considered decisions need to be made about such matters as initiating bargaining
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