Industrial Law Law Extension Committee Winter 2010.

Industrial LawIndustrial Law

Law Extension CommitteeLaw Extension Committee

Winter 2010Winter 2010

3. Strikes and 3. Strikes and Industrial ActionIndustrial Action

Right to strike?Right to strike?

International Covenant on Economic, International Covenant on Economic, Social and Cultural Rights (Article 8): Social and Cultural Rights (Article 8):

The State Parties to the present The State Parties to the present convention undertake to ensure: convention undertake to ensure:

(d) The right to strike, provided that it (d) The right to strike, provided that it is exercised in conformity with the is exercised in conformity with the laws of the particular country. laws of the particular country.

Right to strike?Right to strike?

ILO Committee of Experts on the application ILO Committee of Experts on the application Conventions and Recommendations: Conventions and Recommendations:

““The right to strike is one of the essential The right to strike is one of the essential means available to workers and their means available to workers and their organisations for the promotion and protection organisations for the promotion and protection of their economic and social interests. These of their economic and social interests. These interests not only have to do with obtaining interests not only have to do with obtaining better working conditions and pursuing better working conditions and pursuing collective demands of an occupational nature, collective demands of an occupational nature, but also with seeking solutions to economic and but also with seeking solutions to economic and social policy questions and to labour problems social policy questions and to labour problems of any kind which are a direct concern to of any kind which are a direct concern to workers.” workers.”

Criminal liabilityCriminal liability

Crimes ActCrimes Act 1914 (Cth): 1914 (Cth): Governer-General may make proclamation Governer-General may make proclamation

as to the existence of a “serious industrial as to the existence of a “serious industrial disturbance prejudicing or threatening” disturbance prejudicing or threatening” interstate or overseas trade (s 30J); interstate or overseas trade (s 30J);

Offence of obstructing or hindering the Offence of obstructing or hindering the provision of a public service or interstate provision of a public service or interstate or overseas trade “by violence to person or or overseas trade “by violence to person or property … or by spoken or written threat property … or by spoken or written threat or intimidation … or by boycott or threat or intimidation … or by boycott or threat or boycott of person or property” (s 30K). or boycott of person or property” (s 30K).

Meaning of industrial Meaning of industrial actionaction

Section 19: Section 19: the performance of work the performance of work by an employeeby an employee in a in a

manner different from that in which it is manner different from that in which it is customarily performed, or the adoption of a customarily performed, or the adoption of a practice in relation to work practice in relation to work by an employeeby an employee, the , the result of which is a restriction or limitation on, or result of which is a restriction or limitation on, or a delay in, the performance of the work; a delay in, the performance of the work;

a ban, limitation or restriction on the performance a ban, limitation or restriction on the performance of work of work by an employeeby an employee or on the acceptance of or on the acceptance of or offering for work or offering for work by an employeeby an employee; ;

a failure or refusal by employees to attend for a failure or refusal by employees to attend for work or a failure or refusal to perform any work at work or a failure or refusal to perform any work at all all by employeesby employees who attend for work; who attend for work;

the lockout of employees from their employment the lockout of employees from their employment by the employerby the employer of the employees; of the employees;

Meaning of industrial Meaning of industrial action (cont.)action (cont.)

But not: But not: action by employees that is authorised or agreed to by action by employees that is authorised or agreed to by

the employer of the employees; the employer of the employees; action by an employer that is authorised or agreed to action by an employer that is authorised or agreed to

by or on behalf of employees of the employer; by or on behalf of employees of the employer; action by an employee if:action by an employee if:

(i) the action was based on a reasonable concern by (i) the action was based on a reasonable concern by the employee about an imminent risk to his or her the employee about an imminent risk to his or her health or safety; andhealth or safety; and(ii) the employee did not unreasonably fail to comply (ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform with a direction of his or her employer to perform other available work, whether at the same or another other available work, whether at the same or another workplace, that was safe and appropriate for the workplace, that was safe and appropriate for the employee to perform.employee to perform.

Protected actionProtected action

Industrial action is “protected Industrial action is “protected industrial action” for a proposed industrial action” for a proposed enterprise agreement if it is: enterprise agreement if it is:

Employee claim action (s 409); Employee claim action (s 409); Employee response action (s 410); Employee response action (s 410); Employer response action (s 411). Employer response action (s 411).

Employee claim actionEmployee claim action

Employee claim action must (s 409): Employee claim action must (s 409): Be organised or engaged in for the Be organised or engaged in for the

purposes of supporting or advancing purposes of supporting or advancing claims in relation to the agreement; claims in relation to the agreement;

Be organised or engaged in by Be organised or engaged in by bargaining representative or bargaining representative or employees specified in ballot; employees specified in ballot;

Satisfy the common requirements and Satisfy the common requirements and additional requirements. additional requirements.

Additional requirementsAdditional requirements

Additional requirements are (s 409): Additional requirements are (s 409): Action must be authorised by Action must be authorised by

protected action ballot; protected action ballot; Must not be in support of claims that Must not be in support of claims that

include unlawful terms; include unlawful terms; Must not be engaging in pattern Must not be engaging in pattern

bargaining; bargaining; Must not related to a significant Must not related to a significant

extent to a demarcation dispute. extent to a demarcation dispute.

Common requirementsCommon requirements

Protected action must (s 413): Protected action must (s 413): Not relate to greenfields or multi-Not relate to greenfields or multi-

enterprise agreement; enterprise agreement; Notice requirements must have been met; Notice requirements must have been met; Compliance with orders of FWA; Compliance with orders of FWA; Not take place before the nominal expiry Not take place before the nominal expiry

date of an enterprise agreement; date of an enterprise agreement; No suspension or termination order in No suspension or termination order in

place. place.

Pattern bargainingPattern bargaining

Pattern bargaining occurs if (s 412): Pattern bargaining occurs if (s 412): A person is a bargaining representative for A person is a bargaining representative for

2 or more proposed enterprise 2 or more proposed enterprise agreements; and agreements; and

Engages in a course of conduct seeking Engages in a course of conduct seeking common terms; common terms;

The conduct relates to 2 or more The conduct relates to 2 or more employers; employers;

Unless the bargaining representative is Unless the bargaining representative is genuinely trying to reach agreement. genuinely trying to reach agreement.

Genuinely tried to reach Genuinely tried to reach agreementagreement

Australian Industry Group v AFMEPKIUAustralian Industry Group v AFMEPKIU (Print (Print T1982): T1982):

““The more the negotiation conduct can be The more the negotiation conduct can be categorised as evidencing a refusal to allow categorised as evidencing a refusal to allow agreement other than on an all or none basis, the agreement other than on an all or none basis, the greater the likelihood that it should be found to fail greater the likelihood that it should be found to fail the genuinely try to reach agreement the other the genuinely try to reach agreement the other negotiator test. However, there are variations and negotiator test. However, there are variations and permutations of demands, conduct and character permutations of demands, conduct and character of negotiating parties that must be assessed.” of negotiating parties that must be assessed.”

Protected action ballotProtected action ballot

Bargaining representative may apply to FWA Bargaining representative may apply to FWA for a protected action ballot order (s 437); for a protected action ballot order (s 437);

FWA must make ballot order if satisfied that FWA must make ballot order if satisfied that each applicant has been genuinely trying to each applicant has been genuinely trying to reach agreement (s 443); reach agreement (s 443);

Industrial action is authorised if at least 50% Industrial action is authorised if at least 50% of employees vote, more than 50% approved of employees vote, more than 50% approved the action and it commenced within 30 days the action and it commenced within 30 days of ballot (unless extended by FWA) (s 459). of ballot (unless extended by FWA) (s 459).

ImmunitiesImmunities

Industrial action that is “protected” is Industrial action that is “protected” is shielded from legal action (s 415): shielded from legal action (s 415):

No action lies under any law in force in a No action lies under any law in force in a State or Territory in respect of protected State or Territory in respect of protected action unless the action has involved or is action unless the action has involved or is likely to involve: likely to involve:

a)a) personal injury; personal injury; b)b) wilful or reckless destruction or damage to wilful or reckless destruction or damage to

property; property; c)c) the unlawful taking, keeping or use of property. the unlawful taking, keeping or use of property.

Suspension or Suspension or termination of industrial termination of industrial

actionactionFWA may suspend or terminate protected FWA may suspend or terminate protected industrial action if: industrial action if: Significant economic harm (s 423); Significant economic harm (s 423); Endangering life, safety or health of Endangering life, safety or health of population or damage to Australian population or damage to Australian economy (s 424); economy (s 424); For a cooling off period (s 425); For a cooling off period (s 425); Significant harm to third parties (s 426); Significant harm to third parties (s 426); By declaration by the Minister (s 431). By declaration by the Minister (s 431).

Direct prohibitionDirect prohibition

418 FWA must order that industrial action by 418 FWA must order that industrial action by employees or employers stop etcemployees or employers stop etc

(1)(1)If it appears to FWA that industrial action by one If it appears to FWA that industrial action by one or more employees or employers that is not, or or more employees or employers that is not, or would not be, protected industrial action: would not be, protected industrial action:

(a) is happening; or (a) is happening; or

(b) is threatened, impending or probable; or (b) is threatened, impending or probable; or

(c) is being organised; (c) is being organised;

FWA must make an order that the industrial FWA must make an order that the industrial action stop, not occur or not be organised (as the action stop, not occur or not be organised (as the case may be) for a period (the stop period) case may be) for a period (the stop period) specified in the order. specified in the order.

DeregistrationDeregistration

Order may be made deregistering union if (Sch 1, s 28): Order may be made deregistering union if (Sch 1, s 28): the organisation or a substantial number of members continues the organisation or a substantial number of members continues

to breach an award, agreement or order of the Commission and to breach an award, agreement or order of the Commission and the conduct has prevented or hindered the achievement of an the conduct has prevented or hindered the achievement of an object of the Act; object of the Act;

the organisation or a substantial number of members have the organisation or a substantial number of members have engaged in industrial action which has prevented, hindered or engaged in industrial action which has prevented, hindered or interfered with the activities of a federal-system employer or interfered with the activities of a federal-system employer or the provision of any public service; the provision of any public service;

the organisation or a substantial number of members have the organisation or a substantial number of members have engaged in industrial action which has had, is having or is engaged in industrial action which has had, is having or is likely to have a substantial adverse effect on the safety, health likely to have a substantial adverse effect on the safety, health or welfare of the community; or welfare of the community;

the organisation or a substantial number of members have the organisation or a substantial number of members have failed to comply with an injunction under s496(12), order under failed to comply with an injunction under s496(12), order under ss508 or 509 (strike pay), order under s807 (freedom of ss508 or 509 (strike pay), order under s807 (freedom of association) or various other provisions of the Act. association) or various other provisions of the Act.

Strike payStrike pay Where employee engages in industrial action on Where employee engages in industrial action on

a day, the employer must not pay the employee a day, the employer must not pay the employee in relation to the total duration of industrial in relation to the total duration of industrial action (s 470); action (s 470);

In case of partial work bans, an employer may In case of partial work bans, an employer may give notice of an intention to reduce payments give notice of an intention to reduce payments or non-payment and refusal to accept or non-payment and refusal to accept performance of any work (s 471); performance of any work (s 471);

FWA may vary the proportion of payment having FWA may vary the proportion of payment having regard to whether payment was reasonable and regard to whether payment was reasonable and fairness in all the circumstances (s 472). fairness in all the circumstances (s 472).

Interference with Interference with contractual relationscontractual relations

Elements: Elements: KnowledgeKnowledge – defendant must know of – defendant must know of

contractual obligation to plaintiff. contractual obligation to plaintiff. IntentionIntention – defendant must be – defendant must be

intention of persuading, procuring or intention of persuading, procuring or inducing breach or interference in inducing breach or interference in contract. contract.

InterferenceInterference – must be breach of – must be breach of contract or interference in performance. contract or interference in performance.

Direct interferenceDirect interference

Indirect interferenceIndirect interference

ConspiracyConspiracy

Conspiracy to injure (simple conspiracy)Conspiracy to injure (simple conspiracy) - - where two or more persons combine for the where two or more persons combine for the predominant purpose of causing injury to predominant purpose of causing injury to another in his or her trade or business, or another in his or her trade or business, or other legitimate interests, and damage other legitimate interests, and damage results to the personresults to the person. .

Conspiracy by unlawful meansConspiracy by unlawful means - - where two where two or more persons combine to undertake or more persons combine to undertake concerted action by unlawful means to concerted action by unlawful means to deliberately inflict damage on the third deliberately inflict damage on the third person. person.

IntimidationIntimidation

Elements: Elements: ThreatThreat – The defendant must have – The defendant must have

made a threat to undertake certain made a threat to undertake certain conduct which is coupled with the conduct which is coupled with the coercive demand (eg. I will hit you coercive demand (eg. I will hit you unless you do what I ask). unless you do what I ask).

Unlawful conductUnlawful conduct – The threat must – The threat must be of unlawful conduct such as criminal be of unlawful conduct such as criminal or tortious conduct or threatened or tortious conduct or threatened breaches of contract or statute. breaches of contract or statute.

Secondary boycotts (TPA, Secondary boycotts (TPA, s 45D)s 45D)

… … a person must not, in concert with a a person must not, in concert with a second person, engage in conduct: second person, engage in conduct: (a)  that hinders or prevents: (a)  that hinders or prevents:

(i)  a third person supplying goods or services to (i)  a third person supplying goods or services to a fourth person (who is not an employer of the a fourth person (who is not an employer of the first person or the second person); or first person or the second person); or

(ii)  a third person acquiring goods or services (ii)  a third person acquiring goods or services from a fourth person (who is not an employer from a fourth person (who is not an employer of the first person or the second person); and of the first person or the second person); and

(b)  that is engaged in for the purpose, and (b)  that is engaged in for the purpose, and would have or be likely to have the effect, of would have or be likely to have the effect, of causing substantial loss or damage to the causing substantial loss or damage to the business of the fourth person. business of the fourth person.

DefenceDefence

45DD Situations in which boycotts 45DD Situations in which boycotts permittedpermitted

(1)  A person does not contravene, and is not (1)  A person does not contravene, and is not involved in a contravention of, subsection involved in a contravention of, subsection 45D(1), 45DA(1) or 45DB(1) by engaging in 45D(1), 45DA(1) or 45DB(1) by engaging in conduct if the dominant purpose for which conduct if the dominant purpose for which the conduct is engaged in is substantially the conduct is engaged in is substantially related to the remuneration, conditions of related to the remuneration, conditions of employment, hours of work or working employment, hours of work or working conditions of that person or of another person conditions of that person or of another person employed by an employer of that person.employed by an employer of that person.