Industrial Action

Question 1

Industrial Action

Answer 1

• Industrial Action: Various types of action to stop or disparate the performance of work. Typically used to impose pressure and secure a favorable outcome.
  
  • Common forms of action
    • Strike
    • Work ban
    • Boycott
    • Go-slow
    • Work-to-rule
    • Picketing
  • Employer industrial action
    • Lockout - closing doors and preventing employees to earn any money from working

Question 2

Article 8(1)(d) of Int. Covenant ESCR

Answer 2

• Right to strike specifically recognizes

* Australia is (and always has) been in breach of international obligation

Question 3

Right to Strike - Common Law

Answer 3

• Still a civil liability as a matter of common law
• Breach of the employees contractual obligations of obedience and co-operation
  
  • When an employee fails to work as directed (because participating in IA) - no work, no pay

Question 4

Striking - Remedies

Answer 4

• Employers can go to court to seek an interlocutory injunction
  
  • Even though order is tantamount to specific performance, does not seem to concern them when ordering a group back to work

Question 5

Amcor Packaging v AMWU (2006)

Answer 5

Able to make out a prima facie case that the action is illegal, and on “balance of convenience” favors returning to work

Question 6

Hall v General Motors-Holden (1979)

Answer 6

Striking can also be regarded as sufficiently serious breach of contract to justify summary dismissal

Question 7

Cicciarelli v Qantas (2012)

Answer 7

• Inciting/encouraging others to take unlawful action can amount to summary dismissal

Question 8

Tortious Liability

Answer 8

• Encouragin or coordinating industrial action constitutes a tort/civil wrong
  * Tort of contractual interference
  * Conspiracy by illegal means

Question 9

Dollar Sweets v FCA (1986)

Answer 9

Torts provide a means of suing individuals behind the campaign, and the union behind them

Question 10

s19

Answer 10

• Industrial action is

  * Performing work in a different manner
  * That restricts, limits, delays performance of works
  * Bans limits or restricts accepting work
  * Failing or reusing to attend work 

  • Permissable action that do not constitute IA:
    • Authorized or agreed by employer; or
    • There is an imminent risk to health or safety

Question 11

s19(3)

Answer 11

Lockout - Preventing employees from working without having to terminate their employment

Question 12

s417

Answer 12

Prohibits IA during the nominal terms of an EA

Question 13

s442

Answer 13

Allows court to grant an injunction restraint IA

Question 14

s418

Answer 14

• An order that can be obtained by FWC to make IA cease, not be taken, or not be organized
  
  • Can be made on FWC own initiative
  • Have 48 hours to hear the matter and decide
  • Three situations that it may refuse to stop the IA:
    • Not satisfied the IA will actually occur
    • Does not appear to be IA
    • Tenable argument that the action is protected
  • Affected party may commence proceeding in the Federal Court to impose fines of up to $51,000

Question 15

Union Liability

Answer 15

• Trade unions are vicariously liable for the actions of their officials and delegates

Question 16

Div9 Part 3-3

Answer 16

Ensures workers are not paid for any period while engaged in IA. Prohibits employers from making payments, forbids employees and unions from accepting or even asking for payment

Question 17

s408

Answer 17

A may only happen in relation to a proposed EA (cannot be a greenfields or MEA) and bargaining period has begun.

• Action must fall into one of the three categories:
  • s409 - Employee claim action
  • s 410 - Employee response action
  • s411 - Employer response action
• Parties taking protection IA are immune from legal liability
• Employers are unable to dismiss or act in prejudicial manner because of protected IA

Question 18

CEPU v Pinnacle (2010)

Answer 18

Employer can only take action in response to employee IA

Question 19

AIPA v FWA (2012)

Answer 19

Even minor IA can allow for employer action. Only needs causal link.

Question 20

Initiating Industrial Action

Answer 20

s347 - Apply to FWC for secret ballot (50%+1 support)

FWC to consider that genuine agreement has failed

s414 - Notice must be provided to other party
Specify day and action to be taken

Question 21

Unprotected Industrial Action

Answer 21

• Has been suspended or terminated by FWC
  
  • Supporting claim for unlawful term
  • Employees are engaged in pattern bargaining
  • No attempts to genuinely reach agreement
  • Not complying with orders from FWC

Question 22

Suspension and Termination

Answer 22

FWC may suspend or terminate IA if:

s423 - MAY significant harm to economy

s424 - MUST Threatening to endanger health and safety

s425 - MUST Allow for cooling off period

s426 - MUST Causing harm to third party

Question 23

Question 1

Answer 23

Answer 1

Question 24

Question 2

Answer 24

Question 2