August 30, 2023
What every MEU member should know about Protected industrial Action
Key points:
- Industrial action is when workers disrupt regular work duties to advance their position during bargaining.
- Industrial Action is ‘protected’ if it occurs during bargaining for an Enterprise Agreement and meets conditions set out in the Fair Work Act.
- Industrial Action must be protected to prevent significant costs and penalties against individuals and the union.
- Protected Industrial Action (PIA) can take many forms from bans on particular duties to lengthy strikes.
- PIA can be an effective way to win an improved offer if bargaining has reached a stalemate, however there are costs and risks for workers to consider.
Why take industrial action?
Industrial action is one of the most effective tools available to workers to improve their bargaining position when satisfactory progress at the negotiating table has stalled, by acting collectively to affect the normal operation of the business. It is never a decision taken lightly, especially as workers don’t get paid if they are not working due to industrial action. However, many of the rights and entitlements enjoyed today were won through industrial action.
What are the types of industrial action?
While we often think of industrial action as strikes, there are several other forms. The Fair Work Act lists the following as legitimate forms of industrial action:
- Performing work in a manner different to how it’s normally performed, for instance all workers taking their breaks at once rather than when directed to do so by management.
- Adopting a practice that restricts, limits or delays the performance of work, such as a ban on hot seat changeovers.
- A ban, limitation or restriction on performing, accepting, or offering to work, for example refusing to drive a certain kind of vehicle or conduct training.
- Employees failing or refusing to attend for work or perform any work. This could be a short work stoppage on an otherwise ordinary shift, or not attending a certain shift.
Industrial action does not include actions taken where the employer and employee agree, nor does it cover any disruptions to normal work based on a reasonable concern about an imminent risk to health and safety.
What’s the difference between protected and unprotected industrial action?
Protected industrial action refers to any industrial action that has been previously approved by the Fair Work Commission. Getting your industrial action protected prevents your employer from legally taking many retaliatory actions.
Unprotected industrial action – sometimes known as ‘wildcat’ strikes – refers to any industrial action that hasn’t been approved by Fair Work. As these actions are not protected, they are a counterproductive method of dispute resolution under the current framework. Potential consequences include dismissal or being held liable for any losses incurred by the employer resulting from industrial action. In the coal industry this could easily be millions of dollars depending on the length and severity of the action.
The Fair Work Commission can issue an order to stop the unprotected industrial action. If that order is not followed, the Commission can issue fines to both individuals and organisations and rescind the right for protected industrial action for the duration of bargaining.
When can I take PIA?
Workers can take PIA during the bargaining stage of an enterprise agreement. The first step is a ballot outlining the proposed forms of industrial action to be taken. This ballot must pass with a majority of affected workers participating and a majority of participants supporting industrial action.
At least three days’ notice must be given to the employer outlining the forms of action to be taken, including the date of the action. PIA must begin within 30 days unless an extension has been granted by Fair Work Commission.
Can the boss take industrial action too?
Yes, provided they follow the same procedure with Fair Work that workers are required to, bosses can take protected industrial action as well. They may elect to do so within the bargaining stage, or as a retaliatory action against workers on industrial action. Typically, employers’ industrial action will take the form of a lockout, whereby the doors of a worksite are locked, and workers are physically prevented from attending their shifts.
Will I get paid while taking PIA?
The Fair Work Act prevents employers from paying workers engaged in industrial action for the duration of the action. Where the action is a partial work ban, employers must make payments proportionally based on hours worked, with notice to the employee of the reduction. The employer may also elect to not pay workers during the partial work ban, notifying the employees that no work will be accepted until normal duties resume.
MEU Members who elect to contribute to the National Assistance Fund (NAF) may be eligible for a financial safety net in certain protracted industrial disputes, where the issues at stake have been deemed to be of national significance. Conditions apply and they are explained to Members if they are likely to become eligible to access the NAF.
How will taking industrial action effect my entitlements?
In most cases PIA will not impact your entitlements or continuity of service. For the period industrial action is undertaken no entitlements like annual leave will be accrued, however the Fair Work Act prevents them from being taken away, even if the boss elects to take retaliatory action by way of a lockout. For FIFO workers, employers can’t prevent workers from accessing their accommodation during industrial action.
What if my workmates don’t want to take industrial action?
If a protected action ballot passes, but not all of your workmates wish to take part, the action will still be protected. The Fair Work Act prevents employers from taking adverse actions against workers for taking part in industrial activities. The law also protects workers who do not wish to participate in industrial action. This means any worker participating in PIA must not intimidate employees who wish to continue working, including if they cross a picket line to attend work. ‘Protected’ status can be lost if behaviour is found to be intimidating.
Can I lose the right to take PIA?
Acting against an order given by the Fair Work Commission can forfeit your right to PIA for the duration of bargaining. For example, if an order is granted for striking workers to return to work, and they do not, they lose whatever protections their industrial action had and the right to have future actions protected for the duration of bargaining.
The Fair Work Commission can terminate or suspend a PIA if it is found endanger the personal safety, health or welfare, if it would cause significant damage to the Australian economy, or if it is protracted and causing significant economic harm to the employer or employee. Further, the Minister for Employment can make a ministerial declaration terminating the industrial action for the same reasons.
Considering taking industrial action?
Consider which activities and times would have the most impact. Some actions can cause disruption for minimum loss of pay for workers.
For example:
- BHP Operations Services Production workers made an impact by putting a ban on driving the company bus on the mine site. This affected movement of workers around the mine, and therefore affected operations at the mine site.
- At Appin mine, workers took rolling half-day stoppages – the stopping and starting of production caused significant disruption but minimised cost to workers.
- Workers at Yallourn coal mine took industrial action around the clock and refused supervisory roles – this meant senior management getting called to work at 2:00am to deal with scheduled site checks.
Other considerations include whether the employer has an alternative workforce they can call on to undermine your industrial action; or other factors that may impact your success.
Workers must remember that workplace policies such as media and social media policies continue to apply during industrial action – so leave commentary and photographs to your elected delegates and Union reps.
Your Union reps will guide you through the PIA process; and always remember, the most important ingredient for successful collective action is solidarity.