Commencing protected industrial action

See Fair Work Act s.459(1)

In order for employee claim action[1] to be authorised and protected it must commence:

• during the 30 day period starting on the date of the declaration of the results of the ballot, or
• if the Commission has granted an extension to the 30 day period, during the extended period.

Once commenced, the form of protected industrial action taken can continue beyond the 30 day period provided it is in line with the ballot endorsed action.[2]

There is no requirement that the specific instances of protected industrial action specified in the notice given to the employer under s.414 of the Fair Work Act are commenced within the 30 day period. It is sufficient that the genus of industrial action commences within the 30 day period.[3]

The 30 day period is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The purpose of the time limit is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.[4]

See Fair Work Act s.459(1)(d)(ii) and s.459(3).

The Commission may extend the period for the commencement of protected industrial action by up to 30 days if an applicant for the protected action ballot order makes an application to the Commission, and the period has not previously been extended.

The period may be extended after the initial 30 day period has expired, including pursuant to an application made after the expiry of the initial 30 day period.[5]

Related information

• What is a day?

Period for commencement of protected industrial action extended

EnergyAustralia Yallourn Pty Ltd v CFMEU

EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8 (19 February 2014), [(2014) 218 FCR 316].

Facts

The CFMEU applied for an extension of the 30-day period for the commencement of protected industrial action. The Commission extended the period. EnergyAustralia made an application to the Full Court of the Federal Court contending that the Commission was wrong to conclude it could extend the period after the initial 30-day period had expired.

Outcome

A majority of the Full Court held that this period can be extended by the Commission up to 30 days under s.459(3), even if the initial 30-day period had expired.

Relevance

An extension of up to a further 30 days which the Commission may grant is to be calculated by reference to the day ballot results are declared, and not the day from which any extension is granted. Only action that 'commences' in the extended period will be protected under s 459(1)(d)(ii). If action has commenced prior to the making of the extension order the action will not be authorised.

No action to be taken before nominal expiry date of current agreement

See Fair Work Act s.417

Industrial action must not be organised or engaged in before the nominal expiry date of a current enterprise agreement (the existing agreement) or workplace determination has passed.

This requirement applies to

• an employer, employee, or union, who is covered by the existing agreement or determination, or
• an officer of a union that is covered by the existing agreement or determination, acting in that capacity.

If a protected action ballot is conducted before the nominal expiry date of an existing agreement, it is unlawful to organise or take industrial action pursuant to the ballot before that nominal expiry date. If industrial action is taken before the nominal expiry date, even if that action was approved by the protected action ballot, the industrial action will be unprotected.[6]

Related information

• What is industrial action?

Injunctions

The Federal Court or Federal Circuit Court may grant an injunction or make any other order the Court considers appropriate to stop or remedy the effects of a breach of s.417 on application by:

• an employer, employee or union covered by the enterprise agreement or workplace determination
• a person affected by the industrial action, or
• an inspector.

Industrial action NOT taken before nominal expiry date of current agreement

CFMEU v BHP Coal Pty Ltd

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (6 March 2015).

Facts

The CFMEU formulated a general policy concerning bans on overtime regarding employees of a mine site. This policy was posted in the crib room of the site where the employees represented by the union were covered by a current enterprise agreement.

Outcome

In considering whether the union contravened the Fair Work Act by promulgating the policy – namely if it had 'organised' industrial action before the agreement's nominal expiry date – a distinction was drawn between organising industrial action and organising 'for' industrial action. The Full Court of the Federal Court considered that organising 'for' industrial action does not provide a basis for a breach of s.417. The Full Court found the union did not contravene s.417.

In addition to this finding, the Full Court also considered that an 'attempt' to organise or an 'attempt' to engage in industrial action would not contravene s.417.

Action taken by the CFMEU could not have been considered as 'Industrial action taken' in accordance with s.19(1)(b) as it was not taken by an employee or employer.

Relevance

A contravention of s.417 only occurs if a person has organised industrial action by employees or employers or if employees or employers have engaged in such action. Conduct which attempts, but fails, to organise the taking of industrial action is not in contravention of s.417(1).

Industrial action taken before nominal expiry date of current agreement

Director of the Fair Work Building Industry Inspectorate v Adams

Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828 (12 August 2015).

Facts

Crown Construction Services Pty Ltd (CCS) was sub-contracted by a lead contractor to perform work at a Hospital. The employees on site were covered by the Crown Construction Services Pty Ltd Enterprise Agreement 2012, which had a nominal expiry date of 31 October 2014.

The employees submitted CCS authorised or agreed to the action taken in accordance with s.417(1) of the Fair Work Act.

The Director of the Fair Work Building Industry Inspectorate disputed this and relied on s19(c) to establish that each of the 74 employees in question engaged in industrial action.

Outcome

The Federal Court of Australia held that the respondents' industrial action was taken while an enterprise agreement was in place and therefore contravened s.417(1) of the Fair Work Act.

The Court found that the failure of the respondents to attend for work at the site on 28 February 2013, or perform any work at all if they did attend the site, amounted to unprotected industrial action.

Relevance

The decision demonstrates the consequences in particular circumstances where industrial action is taken before the nominal expiry date of a current agreement expires.

Power Projects International Pty Ltd v AMWU; AWU

Power Projects International Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); The Australian Workers' Union [2011] FWAFB 1327 (Watson SDP, Harrison SDP, Rafaelli C, 1 March 2011).

Facts

Power Projects International (PPI) held maintenance contracts at the Eraring Power Station with the work undertaken by its employees under the Power Projects International Certified Agreement 2008. PPI won contracts for the upgrade of turbo-generators and boilers at the Eraring Power Station (the upgrade project work).

The 2008 Agreement was expressed to apply to employees of PPI, within any of the occupations of the agreement, 'whilst engaged in the life extension, maintenance, repair and/or rehabilitation on industrial or power station sites'. The agreement applied to all work and activities on such sites, including areas deemed as a 'Construction Site', except where there was a specific mandatory 'Site Agreement' in operation at the commencement of the work.

Two s.437 applications were made by the unions, as bargaining representatives for their members, following approaches to PPI to negotiate an enterprise agreement to apply to the upgrade project work. The unions contended that the upgrade project work was properly to be defined as construction work and therefore beyond the scope of the 2008 Agreement, which they characterised as a maintenance agreement.

At the time the s.437 applications were made the 2008 Agreement still had several months to run.

At first instance the Commission found that the unions s.437 applications complied with item 17 of Schedule 13 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act) which set out a 'Restriction on when protected action ballot orders may be made' and that the upgrade project work was not of the character of work within the scope of the 2008 Agreement. Protected action ballot orders were made.

Outcome

At appeal the Full Bench held that if any of the employees covered by the 2008 Agreement were included within the group to be covered by the proposed agreement the applications for ballot orders could proceed no further.

The Full Bench found there were employees who did maintenance work on plant and equipment under the 2008 Agreement who would do maintenance work on that plant and equipment and would be covered by the proposed enterprise agreement. The s.437 applications did not comply with item 17 of Schedule 13 of the Transitional Act and the ballot orders were quashed.

Relevance

Even though the 2008 Agreement provided for 'Site Agreements', the employees who would be covered by the proposed agreement were, at the time the s.437 applications were made, covered by the 2008 Agreement which which still had several months to run. As a result the s.437 applications (organising industrial action) were made before the nominal expiry date of the current agreement and were prohibited by s.417.

Protected industrial action cannot be taken until after the employer agrees to bargain, initiates bargaining, or is required to bargain by the issue of a relevant majority support determination or scope order (the notification time).[7]

This includes where the scope of the proposed single-enterprise agreement is the only matter in dispute.[8]

A notification time for a proposed multi-enterprise agreement cannot be used as a notification time for a proposed single-enterprise agreement.[9]