October 2014 Industry Update

Enterprise Bargaining – when is it lawful for workers to strike?

FWBC is aware that a number of major enterprise agreements around the country are due to expire in the near future. Workers and/or unions may play a direct role in the negotiations for replacement enterprise agreements. As part of the bargaining process, there will be certain circumstances where workers may be able to strike under the protection of the law. This is known as protected industrial action.

Protected industrial action can generally be taken if all of the following are met:

  • a new agreement (that is not a greenfields or multi-enterprise agreement) is being negotiated;
  • the nominal expiry date of any existing agreement has passed;
  • for action by employees, a protected action ballot order has been approved by the Fair Work Commission (FWC) and the industrial action has been authorised by a secret ballot of employees;
  • the bargaining representatives are genuinely trying to reach agreement, and are not taking action in relation to unlawful terms or as part of pattern bargaining; and
  • all orders made by the Fair Work Commission, and any relevant notices required under legislation (such as the Fair Work Act), are complied with.

Workers and unions cannot face legal action under State or Territory law when taking part in protected industrial action, unless that action is likely to involve personal injury, damage or unlawful use of property.

If the industrial action does not fall within the meaning of protected industrial action, it will be considered unprotected and legal action may be taken under State or Territory law.

For example, if workers or unions engage in industrial action (e.g. a strike) before the nominal expiry date of a registered agreement has passed, individuals may face penalties of up to $10,200, and a body corporate may face penalties of up to $51,000.

Even if protected industrial action is taken, it is important to remember that everyone must still take part in Good Faith Bargaining. This means that although there is no obligation to reach an agreement, everyone is expected to communicate openly and focus negotiations on key issues during enterprise bargaining.

Is participating in industrial action compulsory?

Participating in industrial action is a matter of choice.  It is up to the person to decide whether or not they want to take part – a person cannot be forced into participating.

Unsure about proposed industrial action? Need more information? You can call our Hotline on 1800 003 338 for confidential advice.

A flyer called ‘Strike? Stop and Think’ can also be downloaded from www.fwbc.gov.au

We value your feedback on our Industry Update. Please provide feedback or tell us what you would like in your update by contacting us at media [at] fwbc.gov.au.

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