Industrial Law Law Extension Committee Winter 2010

3. Strikes and Industrial Action

Right to strike? International Covenant on Economic, Social and Cultural Rights (Article 8): The State Parties to the present convention undertake to ensure: (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

Right to strike? ILO Committee of Experts on the application Conventions and Recommendations: “The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature, but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are a direct concern to workers.”

Criminal liability Crimes Act 1914 (Cth): Governer-General may make proclamation as to the existence of a “serious industrial disturbance prejudicing or threatening” interstate or overseas trade (s 30J); Governer-General may make proclamation as to the existence of a “serious industrial disturbance prejudicing or threatening” interstate or overseas trade (s 30J); Offence of obstructing or hindering the provision of a public service or interstate or overseas trade “by violence to person or property … or by spoken or written threat or intimidation … or by boycott or threat or boycott of person or property” (s 30K). Offence of obstructing or hindering the provision of a public service or interstate or overseas trade “by violence to person or property … or by spoken or written threat or intimidation … or by boycott or threat or boycott of person or property” (s 30K).

Meaning of industrial action Section 19: the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; the lockout of employees from their employment by the employer of the employees; the lockout of employees from their employment by the employer of the employees;

Meaning of industrial action (cont.) But not: action by employees that is authorised or agreed to by the employer of the employees; action by employees that is authorised or agreed to by the employer of the employees; action by an employer that is authorised or agreed to by or on behalf of employees of the employer; action by an employer that is authorised or agreed to by or on behalf of employees of the employer; action by an employee if: action by an employee if: (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her health or safety; and (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

Protected action Industrial action is “protected industrial action” for a proposed enterprise agreement if it is: Employee claim action (s 409); Employee claim action (s 409); Employee response action (s 410); Employee response action (s 410); Employer response action (s 411). Employer response action (s 411).

Employee claim action Employee claim action must (s 409): Be organised or engaged in for the purposes of supporting or advancing claims in relation to the agreement; Be organised or engaged in for the purposes of supporting or advancing claims in relation to the agreement; Be organised or engaged in by bargaining representative or employees specified in ballot; Be organised or engaged in by bargaining representative or employees specified in ballot; Satisfy the common requirements and additional requirements. Satisfy the common requirements and additional requirements.

Additional requirements Additional requirements are (s 409): Action must be authorised by protected action ballot; Action must be authorised by protected action ballot; Must not be in support of claims that include unlawful terms; Must not be in support of claims that include unlawful terms; Must not be engaging in pattern bargaining; Must not be engaging in pattern bargaining; Must not related to a significant extent to a demarcation dispute. Must not related to a significant extent to a demarcation dispute.

Common requirements Protected action must (s 413): Not relate to greenfields or multi-enterprise agreement; Not relate to greenfields or multi-enterprise agreement; Notice requirements must have been met; Notice requirements must have been met; Compliance with orders of FWA; Compliance with orders of FWA; Not take place before the nominal expiry date of an enterprise agreement; Not take place before the nominal expiry date of an enterprise agreement; No suspension or termination order in place. No suspension or termination order in place.

Pattern bargaining Pattern bargaining occurs if (s 412): A person is a bargaining representative for 2 or more proposed enterprise agreements; and A person is a bargaining representative for 2 or more proposed enterprise agreements; and Engages in a course of conduct seeking common terms; Engages in a course of conduct seeking common terms; The conduct relates to 2 or more employers; The conduct relates to 2 or more employers; Unless the bargaining representative is genuinely trying to reach agreement. Unless the bargaining representative is genuinely trying to reach agreement.

Genuinely tried to reach agreement Australian Industry Group v AFMEPKIU (Print T1982): “The more the negotiation conduct can be categorised as evidencing a refusal to allow agreement other than on an all or none basis, the greater the likelihood that it should be found to fail the genuinely try to reach agreement the other negotiator test. However, there are variations and permutations of demands, conduct and character of negotiating parties that must be assessed.”

Protected action ballot Bargaining representative may apply to FWA for a protected action ballot order (s 437); Bargaining representative may apply to FWA for a protected action ballot order (s 437); FWA must make ballot order if satisfied that each applicant has been genuinely trying to reach agreement (s 443); FWA must make ballot order if satisfied that each applicant has been genuinely trying to reach agreement (s 443); Industrial action is authorised if at least 50% of employees vote, more than 50% approved the action and it commenced within 30 days of ballot (unless extended by FWA) (s 459). Industrial action is authorised if at least 50% of employees vote, more than 50% approved the action and it commenced within 30 days of ballot (unless extended by FWA) (s 459).

Immunities Industrial action that is “protected” is shielded from legal action (s 415): No action lies under any law in force in a State or Territory in respect of protected action unless the action has involved or is likely to involve: a) personal injury; b) wilful or reckless destruction or damage to property; c) the unlawful taking, keeping or use of property.

Suspension or termination of industrial action FWA may suspend or terminate protected industrial action if: Significant economic harm (s 423); Significant economic harm (s 423); Endangering life, safety or health of population or damage to Australian economy (s 424); Endangering life, safety or health of population or damage to Australian economy (s 424); For a cooling off period (s 425); For a cooling off period (s 425); Significant harm to third parties (s 426); Significant harm to third parties (s 426); By declaration by the Minister (s 431). By declaration by the Minister (s 431).

Direct prohibition 418 FWA must order that industrial action by employees or employers stop etc (1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Deregistration Order may be made deregistering union if (Sch 1, s 28): the organisation or a substantial number of members continues to breach an award, agreement or order of the Commission and the conduct has prevented or hindered the achievement of an object of the Act; the organisation or a substantial number of members continues to breach an award, agreement or order of the Commission and the conduct has prevented or hindered the achievement of an object of the Act; the organisation or a substantial number of members have engaged in industrial action which has prevented, hindered or interfered with the activities of a federal-system employer or the provision of any public service; the organisation or a substantial number of members have engaged in industrial action which has prevented, hindered or interfered with the activities of a federal-system employer or the provision of any public service; the organisation or a substantial number of members have engaged in industrial action which has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community; the organisation or a substantial number of members have engaged in industrial action which has had, is having or is likely to have a substantial adverse effect on the safety, health or welfare of the community; the organisation or a substantial number of members have failed to comply with an injunction under s496(12), order under ss508 or 509 (strike pay), order under s807 (freedom of association) or various other provisions of the Act. the organisation or a substantial number of members have failed to comply with an injunction under s496(12), order under ss508 or 509 (strike pay), order under s807 (freedom of association) or various other provisions of the Act.

Strike pay Where employee engages in industrial action on a day, the employer must not pay the employee in relation to the total duration of industrial action (s 470); Where employee engages in industrial action on a day, the employer must not pay the employee in relation to the total duration of industrial action (s 470); In case of partial work bans, an employer may give notice of an intention to reduce payments or non- payment and refusal to accept performance of any work (s 471); In case of partial work bans, an employer may give notice of an intention to reduce payments or non- payment and refusal to accept performance of any work (s 471); FWA may vary the proportion of payment having regard to whether payment was reasonable and fairness in all the circumstances (s 472). FWA may vary the proportion of payment having regard to whether payment was reasonable and fairness in all the circumstances (s 472).

Interference with contractual relations Elements: Knowledge – defendant must know of contractual obligation to plaintiff. Knowledge – defendant must know of contractual obligation to plaintiff. Intention – defendant must be intention of persuading, procuring or inducing breach or interference in contract. Intention – defendant must be intention of persuading, procuring or inducing breach or interference in contract. Interference – must be breach of contract or interference in performance. Interference – must be breach of contract or interference in performance.

Direct interference

Indirect interference

Conspiracy Conspiracy to injure (simple conspiracy) - where two or more persons combine for the predominant purpose of causing injury to another in his or her trade or business, or other legitimate interests, and damage results to the person. Conspiracy to injure (simple conspiracy) - where two or more persons combine for the predominant purpose of causing injury to another in his or her trade or business, or other legitimate interests, and damage results to the person. Conspiracy by unlawful means - where two or more persons combine to undertake concerted action by unlawful means to deliberately inflict damage on the third person. Conspiracy by unlawful means - where two or more persons combine to undertake concerted action by unlawful means to deliberately inflict damage on the third person.

Intimidation Elements: Threat – The defendant must have made a threat to undertake certain conduct which is coupled with the coercive demand (eg. I will hit you unless you do what I ask). Threat – The defendant must have made a threat to undertake certain conduct which is coupled with the coercive demand (eg. I will hit you unless you do what I ask). Unlawful conduct – The threat must be of unlawful conduct such as criminal or tortious conduct or threatened breaches of contract or statute. Unlawful conduct – The threat must be of unlawful conduct such as criminal or tortious conduct or threatened breaches of contract or statute.

Secondary boycotts (TPA, s 45D) … a person must not, in concert with a second person, engage in conduct: (a) that hinders or prevents: (i) a third person supplying goods or services to a fourth person (who is not an employer of the first person or the second person); or (ii) a third person acquiring goods or services from a fourth person (who is not an employer of the first person or the second person); and (b) that is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person.

Defence 45DD Situations in which boycotts permitted (1) A person does not contravene, and is not involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.