Protected industrial action in enterprise bargaining
The Fair Work Act is federal legislation brought in by the Rudd government in 2009. It was the work of former Prime Minister Gillard. The Act permits industrial action to be taken by unions and their members without sanction if it is undertaken in support of bargaining for a new enterprise agreement. It is protected in the sense that if the Fair Work Act procedures are followed, those undertaking and agitating for the action are immune from being sued. In former times, employers would often sue their employees for taking strike action, for example for inducing breach of contract, conspiracy to cause economic harm and so forth. That is no longer likely.
Under the Act, all that is required to render the industrial action protected is for the rules contained in the Act to be followed. The procedure is that a union, or appropriate committee, will recommend that protected industrial action be taken. If the action is approved, the union will seek an order from Fair Work Australia that there be a secret ballot order issued. Once applied for, this must be granted within 2 days by the tribunal. The only defence is procedural in the sense that an employer is limited to arguing that there has been a failure to follow the procedures required by the Act for the paperwork, or a breach of the union rules.
Protected industrial action is the action which is approved by the ballot, and includes strikes, bans and limitations and so forth. Illegal activity such as trespassing and assault are of course not protected.
It is important to comprehend that protected action may also be taken by an employer. This can include a lock out, the engagement of independent contractors and a ban on providing overtime even if it is generally worked and relied upon as normal income by employees.
In early 2012 Qantas took protected industrial action against its engineers because the union representing its engineers,the ALEA, was conducting industrial action in the form of a “slow bake”, as the union secretary described the campaign to the media. As it happened that industrial action by the engineers was not protected because it was merely a work to rule at that stage.
Qantas responded by locking out its engineers and grounding its entire fleet. This was thought by most to be very risky, but to astute industrial practitioners, it was very predictable. Under the Act, the only circumstances in which the tribunal is permitted to arbitrate a claim in enterprise bargaining for a new agreement is where the tribunal makes an order prohibiting the protected action. This can only be done on an application to the tribunal by the government on the ground that the national interest and the economy are at risk. Qantas gambled, not unreasonably, on the prospect of the Gillard government making the application to the tribunal, which it did. The ALEA’s claim was sent off for independent arbitration; and shortly after that it was settled. The only real risk Qantas faced was that the government might not have moved to seek the order; but Qantas expected the world wide grounding of its fleet to have that effect. And so it was.