The Fair Work ActThe Fair Work Act is the main piece of legislation that everything else branches out from. For those who came in late, the Fair Work Act 2009 replaced the Workplace Relations Act 1996. This Fair Work Act did make things simpler for the business owner. It replaced the complex Federal and State award system with 122 new Modern Awards. (I will get to them later) If it wasn't for the Fair Work Act, we also wouldn't have the following: Read More
Protected Industrial Action.
One of those areas of industrial relations that receives more than it’s fair share of negative publicity.
Some say that employees should be prohibited from taking protected industrial action. Their claim is that it holds the employer to ransom.
Personally, I believe that it is only poorly managed businesses that should be fearful of it.
Before we get too far in, I’ll clarify a few misconceptions around industrial action.
From here on in, industrial action only refers to industrial action that relates to the Fair Work Act. Industrial action under relevant health and safety legislation is something different.
Protected Industrial Action.
This is where the employees have applied to the Fair Work Commission to ballot. Held a ballot, which has been successful, and then notified the employer.
It can only happen during the period of enterprise agreement negotiations.
And, in the following circumstances.
- Application is made by one or more bargaining representatives of an employee, who will be covered by a proposed enterprise agreement which is not a greenfields or multi-enterprise agreement
- Application is made no more than 30 days before the nominal expiry date of any existing agreement
Unprotected Industrial Action
This is when employees take industrial action without prior approval of the FWC.
In these situations, the employees are breaking the law.
It is then up to you to decide what action you take next.
Can It Be Prevented?
In a nutshell, protected industrial action cannot be prevented. Though you can apply to have protected industrial action stopped under certain circumstances.
My view is that a ballot for industrial action serves as a good litmus test on the level of employee engagement.
If the ballot is successful, then you haven’t adequately engaged your employees, or you aren’t listening to what they are saying.
Remember, it is the employees who decide whether the ballot will be successful.
Not the bargaining reps, or union officials.
How Can You Mitigate Your Risk?
Below are some steps that you can take to help reduce the chance of a successful ballot.
- Don’t leave enterprise agreement negotiation until the last minute
- Have your draft agreement voted on and agreed to, well before the current one is due to expire
- When in the ‘bargaining period’, keep employees updated on meeting outcomes
- Outside of the bargaining period, don’t treat your employees like mushrooms
The above give you a brief list of things that you can do to mitigate your risk.
That being said, there are additional things that can be done to reduce the chance of a successful ballot, and they will vary from business to business.
If you would like to know more on how to reduce the chance of a successful protected industrial action ballot, please contact us via the contact form or schedule a time for an free phone/skype consultation.
If you have any questions about protected industrial action, feel free to ask it on the IRSimplified Forum, Simplifying Industrial Relations Facebook group, or on LinkedIn.
If you read enough articles about the Fair Work Act, written by so-called experts, you start to see a common thread.
That the Fair Work Act is complex and too hard for the average person to understand.
Thankfully this isn’t the case, and most of the time they are pushing their own agenda.
What this means is that it is the experts that are making the Fair Work Act hard to understand.
Truth and understanding don’t sell papers or get clicks.
Take for example this article that appeared in on Switzer.com.au by ‘expert’ David Bates.
Mr Bates wrote a nice story about Steve who has opened a cafe/library/online hub.
Like all good propaganda pieces, Mr Bates makes the simplest of tasks appear complex and long winded.
Fortunately for us, his piece has that many holes in it, that you couldn’t use it to sift flour.
Taking Away The Exaggerations
Using Mr Bates’ example of Steve, and his business, let’s look at things from a positive position.
With Steve being on the cutting edge person that he is, he heads on over to the Fair Work Ombudsman’s website.
Steve chooses this option over calling as he can do it on his time, rather than during business hours.
There Steve finds the pay and conditions calculator where he looks for the right Modern Award.
Having done his due diligence before setting up the business, Steve knows the following.
- The tasks that his employees will spend a majority of their time doing. In this case, it is cafe work (barista).
- There may be over 120 awards now, though before 2009 there were many more. Both at the State and Federal level.
Steve is able to find out that the Restaurant Industry Award 2010, is the relevant one for his business.
Being tech savvy, Steve is able to do this without repeated phone calls or frustration.
Now we come to the interesting part of the scenario. Hiring staff.
If Steve wants to hire a junior staff member, he is able to do that, without being sued.
The position description would be for a junior, and it would be unlawful for him to hire an ‘adult’ to fill it.
This means there would be no lawsuit, and no $5,000 payout and lawyer’s fees.
What does it matter if she goes home on the second day, and is continually absent?
Steve isn’t paying her. Once she has been gone for the three months quoted, her employment can be terminated.
Yes. Anyone can lodge an application for an unfair dismissal remedy.
Yes. Conciliation is part of the process.
There is no legal need for either party to take part in the conciliation call.
Mr Bates also made an erroneous claim about what the conciliator would say.
I doubt that the conciliator would pressure Steve into ‘settling’ the matter.
Tim’s application would have no chance of success, and the conciliator would know that.
How he came about the $5,000.00 figure is anyone’s guess.
FWO Inspectors Aren’t Evil
Not being from the FWO I can’t say what they will do in every situation. One thing I can say is that in the dealings I have had with them, their focus is on education.
Not enforcement or penalties.
Three $540 fines, highly unlikely.
Back-pay for wrong award. Yes, though as he has only had employees work for 2 days, the amount wouldn’t be that much.
What can we learn from this?
Like other areas of business, employees pay and conditions isn’t something to guess.
Steve would have sought help to set up his business structure.
He would have got shop fitters in to build his cafe/library/hub.
He would have got someone else to set up the computer and internet for the hub.
Not getting someone to help with the wages and conditions side of thing is Steve’s fault.
Not the Fair Work Act.
If you are confused about your obligations under the Fair Work Act, look for someone who can help you.
Subscribing to this site is a good option.
You can do that by following this link, or adding your details below.
There there is the facebook group Simplify Industrial Relations.
Or, head on over to LinkedIn, and join the group Australian Industrial Relations to name a few.
In this day and age, there is no reason for anyone to be confused by the Fair Work Act.
If you are, the only thing I ask you not to do is listen to the word of experts.