Is Industrial Action Lawful in Australia - Coursework Example

Take Home Examination Law Is industrial action lawful in Australia? A central discussion of The Fair Work Act 2009 (Cth) (FW Act) contains distinction between "unprotected" industrial action or unlawful action and "protected" industrial action or lawful action. Under the former legislative regime, however, there was a designated "bargaining period", which was a span during which industrial action was protected. It does not exist anymore. Industrial action revolves what is known as "permitted matters", which, essentially, are matters that are permitted in an employer-employee relationship1. One significant feature of industrial action is that employers cannot use a pre-emptive measure to lock out employees. It is only available as a response to an industrial action as and when planned by an employee. Industrial action can be taken by all employees given that they fulfil certain terms and conditions. However, what is of greater significance despite the changes that have been brought into the Act, rules for termination or suspension for industrial action do not stay changed drastically. In Australia, industrial action can take place through several forms, which includes employees going on a strike (either refuse to perform or attend work) or issue blanket bans (shut off all duties of work). If employers have to respond, they can lock out an employee, which means they would not allow employees to enter the work premises by closing doors on them. As per the FW Act 2009, when one or more of the following actions taken place, the same could be defined under industrial action: employees not performing their duties under how they would in normal circumstances employees resorting to work practices that restrict, hinder or delay work performance employees issue a limitation, a ban or restriction on either accepting or performing work employees either fail to attend the work or refuse accepting it employees are locked out following all above or in absence of the same. However, no person is compelled to either be a part of or not be a part of industrial action unless supported by his or her conscious decision to do so. The Fair Work Commission is empowered to terminate or suspend both protected and unprotected industrial action and can make an order to this effect either on its own or in view of an application by a bargaining representative who is acting on behalf of the enterprise agreement, a Minister of a State or Territory or the Minister for Employment2. The industrial action would be considered as unlawful when the proposed action is threatening, has threatened or would threaten; when it can be assumed to endanger personal safety, life, welfare or health of a specific population or even a part of it; or when the industrial action would be seen as something that would damage Australian economy in some or the other way. It can also be considered as unlawful if it intends to do significant damage to an employer; economically or otherwise. Industrial action is particularly unlawful when an enterprise agreement exists between an employer and an employee and the same hasn't yet approached or passed its nominal expiry date. The Fair Work Commission is empowered to either stop or suspend the unlawful action. It can even use court orders to accomplish this. The unlawful industrial action has serious repercussions particularly for those who are covered by the enterprise agreement or who stand chances of being affected by the action. It would take into consideration the businesses that are indirectly affected by industrial action is different business. For example, if XYZ company gets affected by industrial action in ABC company, which is supplier to XYZ company and didn't get the goods delivered in time, industrial action in ABC company can be termed as unlawful. If the court intervenes, it can ask either both or any single party to pay for the losses. Fine can be imposed too. Industrial action can also be termed as unlawful on part of the employee if he violates employer's workplace right under workplace instrument or law or if the employer is member of the industrial association or its officer. All forms of industrial action are generally considered as prohibitive or unlawful unless they are protected industrial actions. The protection is determined by the FW Act. Any industrial action falling outside of this protection is unlawful and can be exposed to disciplinary actions and penalties. Protected industrial action is taken either by employers or employees for the purpose of either advancing or supporting claims in connection with an agreement being governed under the FW Act. Protection of an industrial action comes in the wake of meeting a number of requirements. For example, if an employee industrial action is to be protection, it can get the desire protection only if a protected ballot authorises it; does not exhibit support of unlawful terms and conditions in the agreement, and if the other party has been given a notice about the action3. To seek a mandate through a ballot, it is mandatory that of all employees at least 50 percent must vote and authorise an industrial action. That is the primary requirement if protection is to be sought for the action. Australian Electoral Commission normally conducts the vote. The interesting feature of the process, however, is that taking part in voting does not necessarily construe that the action has to be or would be taken. That decision depends upon how members down the track see the appropriateness of the industrial action. Protected industrial action provides a strong legal backing to the action takers in the sense that they are absolved of the legal liability, like that of being fined or sued4. However, the protection does not cover personal injuries inflicted on anybody or reckless damage to property or its reckless use5. When industrial action is protected, it can be deemed as an entirely legitimate employee strategy towards bringing about improvement in conditions and terms at work. However, it is not to be undermined that in response to an employee industrial action even employers can take protected industrial action on their own. If employees take it, they cease to have any claim for salary to be paid to them during the time in which action goes on. While the FW Act is the most comprehensive act dealing with labour relations, no plenary powers, on the other hand, have been vested in Commonwealth Government to make laws with respect to the same. These limitations have vis-a-vis have resulted in complexity with labour law system. Legal and political difficulties have arisen when attempts have been made to circumvent the same. Another thing that adds to the problem is that Federal system in Australia has to work in tandem with legislative system in States6. Commonwealth Constitution's section 51(35) states that Federal Government is empowered to make laws with regard to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”7. That means legislative powers in context of federal public services, international and interstate commerce and trade services, constitutional corporations, and external affairs would be regulated through legislative powers as chosen by the Commonwealth. It has an interesting historical context. Conciliation and Arbitration Act 1904 (Cth) was enacted by the Federal Parliament in 1904. That time the Act was intended with the sole purpose of settling interstate disputes by way of arbitration and conciliation, which was pursuant to Commonwealth Constitution's section 51(35). It was under this backdrop that wage and labour-related terms and conditions were set. This Act was modified and renamed several times over the last century. The idea was to enlarge its scope through several amendments. Of particular interest to these amendments was the Industrial Relations Reform Act 1993 (Cth) and the Industrial Relations Act 1988 (Cth)8. This was succeeded by Workplace Relations Act 1996 (Cth). This Act is to “to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia” (section 3). AIRC or Australian Industrial relations Commission was established by it. This is responsible for the dispute settlement and is responsible for employee entitlements and protects freedom of both employers and employees, negotiates and enforces individual and collective employment agreements and is vested with trade union regulations tasks and employer organisations9. Dispute resolution over terms and conditions of employment Workplace disputes and as much as industrial conflicts are not uncommon. It has been observed that workplaces disputes are mostly pertaining to entitlements and wages. Both employers and employees have differing views on the wages; almost grossly contrary to each other. Employers think the types of skill-sets employees come to work with do not deserve high wages; and employees think that they are paid less commensurate to their skills and experiences. The same opinion is held by trade unions; both believe wages are not generous in the real sense of it. The result of these wage conflicts erupt usually in grievances, which need resolution. A range of methods are employed which include conciliation, negotiation, mediation, grievance procedures and arbitration. Each method is used as per the dispute in hand. Grievances are normally solved at the workplace. Negotiations are used when disputes involve third parties like trade unions. For resolution of such disputes employment advocates are pressed into service. More often than not, grievances in the recent times have been resolved internally, wherein even human resource departments have a great role to play. If the need arises experts trained in conflict management are put pressed into service to find ways in resolving grievances. If handling of grievances becomes unproductive in workplaces, then mediation is used as a tool to find a settlement. The mediators are normally third party people who are neutral to each side and have no affiliations as well10. In the initial years disputes would normally arise between employers and unions, so needed resolution. Trade unions have declined in the recent years and so have disputes. It shouldn't be presumed that since unions decreased that is why disputes decreased, but the fact is that newer laws make it impossible for both employers and employees to escalate conflicts or give them the scope to arise in the first place. System of arbitration and conciliation has long been used to resolve disputes. It was under this system that wage-related disputes were resolved for most of 20th century. An independent arbitrator was employed under the system to find a satisfactory resolution for both sides. But this system did not have as much luck as was expected. Enforcement of terms and conditions The two parties to which the agreement applies are the ones who create it. That means all the parties, like the employees, the employer and even their representatives must clearly understand as to what terms and conditions contained in the agreement imply. If there are any confusions regarding the context of agreement or the overall essence of its meanings, the same are better dealt with before the agreement is signed. If all parties are in thorough know-how of what the agreement contains and what it means, the terms and conditions get enforced soon after the agreement is signed under proper seal in a proper authority. However, if employees feel that the agreement is omitting something, they are free to get in touch with Fair Work Ombudsman for further guidance and support. However, the onus of interpreting the terms and conditions on behalf of the employee is not vested in the ombudsman. The commission can only help resolve disputes between two or more parties. Terms and conditions of agreement also contain a clause on disputes and how they can be resolved should they arise. Normally it provides a stepwise process for handling a dispute and even provides guidelines how the agreement should be enforced in that case. Dispute resolution clause needs to be read carefully by both the parties and also check what steps are listed to make an application in case a dispute arises. The terms and conditions emphasise that disputes that have failed to get resolved in the workplace must be taken to the Commission. The framing of terms and conditions further depend on a number of factors like minimum wage rules, national minimum wage orders, and national employment standards annual wage reviews11. Modern awards and enterprise agreements provide a guideline for minimum wage entitlements and conditions of employment. It should be noted that not all employees are covered by an enterprise agreement or an award. They are provided a safety net pertaining to minimum wages by a national minimum wage order. No terms and conditions can override minimum standards set by the National Employment Standards (NES)12. So it is an enterprise agreement that is responsible for setting up minimum wage of an employee. These agreements normally include employment conditions like work hours, overtime and meal breaks, wage rates, a consultation process, procedures pertaining to dispute resolution and wage deductions as deemed applicable on the employee and authorised by him. The terms and conditions of employment cannot be enforced if the same contain unlawful content or connotations. If an agreement does not cover an employee, it is the modern award that sets the terms and conditions for the association. It deals with minimum wage rates, annual leave loading and annual leave, any other leave as applicable, work hours, casual and overtime rates, penalty rates, consultation and allowances. NES is responsible for weekly hours' maximum limit, annual leave, community service leave, public holidays, compassionate leave, carer's leave, parental leave and entitlements thereby, and flexible working arrangements requests. While formulating the terms and conditions of employment the heads like these have to be thoroughly taken into consideration before finalizing and enforcing the same: NES/award conditions, penalty rates, overtime rates, time in lieu and flexi time, salary review, allowances, accident make-up pay, non-standard terms, ordinary hours, leave, rest breaks and meal breaks, termination of agreement, period required for termination, instant dismissal grounds, redundancy, restraint of trade and trade secrets, grievance and dispute procedure, superannuation and employer policy. Once the agreement takes the shape of common law contract of employment, it can be enforced under rules laid out for the same. Employees normally cannot exert as much bargaining power as employers, not to speak of the resources they have, which are far and few13. Employees’ protection against victimisation and discrimination When an employee is treated not so well in comparison to others or treated unfairly because of gender, age, marital status and race characteristics, it is called discrimination. Australian law does not permit discrimination of any type against anyone falling within these categories or beyond. Two types of unlawful discrimination have been mentioned in anti-discrimination law. One is indirect discrimination and another direct discrimination. Indirect discrimination is defined as this: “a requirement, condition or practice (sometimes expressed as an expectation) appears to be the same for everyone actually disadvantages people with certain protected attributes more than it disadvantages people without those attributes; and it is not reasonable in the circumstances”. That means indirect discrimination would be deemed as unlawful if the condition, requirement or expectation placed otherwise on someone proves to be unreasonable in the given circumstances. Indirect discrimination has a lot to do with the attitude of an employee. For example, if the office has fixed all staff meeting in the morning around the time when an employee has a regular work to attend at home (like dropping kids to school), the employee cannot say that he is indirectly discriminated against. In this regard Victorian discrimination laws are of specific mention14. Here, Equal Opportunity Act places special emphasis on certain personal attributes of an employee under the purview of which it is unlawful to discriminate. These include age gender identity, breastfeeding, industrial activity, disability, marital status, marital status, status as a parent or carer, race, sex, lawful sexual activity, pregnancy, physical features, sexual orientation, religious or political beliefs or activities, and personal association with anyone who has any of these characteristics. Direct discrimination, on the other hand, has been explained comprehensively by Equal Opportunity Act 2010. Direct discrimination occurs when an employee is treated by someone unfavourably, or has intent to do so, only because you have a protected attitude. For example, a mental health patient, like that of schizophrenia, is refused accommodation by the manager of a caravan park because in the manager's opinion the caravan park is not where any person suffering from mental illness should be provided space to live. If this person has to show that he was discriminated against, he is to show that he was not treated favourably. Or the manager would have treated someone else favourably in the same circumstances. In other words in order to validate the discrimination, it has to be shown that this person was treated in this manner only because he was not mentally fit. There are several Commonwealth discrimination laws in place which prevent people being discriminated against in public life or when dealing with Commonwealth Government agencies and departments. Several specific Acts have been passed to enforce these laws and these include the Age Discrimination Act 2004 (pertaining to age), the Sex Discrimination Act 1984 (pregnancy, pertaining to sex, marital status, sexual orientation, family responsibilities, intersex status, gender identity, and relationship status), the Racial Discrimination Act 1975 (pertaining to nationality, race, descent, and ethnicity), the Disability Discrimination Act 1992 (pertaining to disability)15. Human rights laws and Commonwealth anti-discrimination laws are administered by the Australian Human Rights Commission. The employees are also protected by the Fair Work Act 2009. FW Act is more specific to anti-discrimination laws prevalent at workplace. An important feature of this Act's anti-discrimination section is that an employer can be deemed as having discriminated against an employee because of his sex, race or colour, age, marital status, disability, carer's or family's responsibilities, religion, pregnancy, political opinion, social origin or national extraction and because an employee engages in industrial activities16. Anti-discrimination law and Fair Work Act do not deal with discrimination in the same manner. Under FW Act an employee needs to demonstrate an employer's 'adverse action' which may include but is not limited to terminating an employee's employment, offering him fewer shifts or treating him unfavourably - all because the employee had a protected attitude including his race, disability, gender or religion. Investigation into such cases can be taken up by Fair Work Commission to check the extent of breaches to the Act. The Australian law clearly demarcates where the discrimination is unlawful. It can be unlawful if it happens in all the following circumstances: if someone is at work, is a job applicant, a contractor or an employee, if someone is at school, in accommodation like an inn or a hotel or a hostel, if it happens during any sports activity, if it takes place in local government, or a club that is publicly funded, if it happens in community organisations, or if it happens when you receive either services or goods. Victimisation Sometimes employees leave acts of discrimination at workplace or elsewhere unreported because they fear being victimised. Victimisation is a fear because the person who has been discriminated against by someone with whom he or she has continuing relationship is afraid of being victimised if the crime is reported by him. Victimisation can take an ugly turn, but the most common one is harassment. Anti-discrimination laws consider victimisation unlawful and there is a provision for penalties against someone who victimises anybody17. To explain this in detail, victimisation is when somebody either subjects or threatens to subject someone else to some form of harm or detriment, because this person has: lodged a sexual harassment complaint or a complaint of discrimination provided any documents or information about one or both to the concerned authorities asserted his or her right in a reasonable manner citing or deriving support from anti-discrimination laws makes an allegation of unlawful conduct against someone under anti-discrimination law Employee protections under Fair Work Act 2009 The Act provides a range of protections to employees so that they can be protected from 'adverse actions'. That is not to say that previous law did not provide these protection, but what is of importance is that Fair Work Act has been able t streamline and consolidate the same. The most important protection is that adverse action cannot be taken by an employer against an employee, independent contractor or even a prospective employee simply on the grounds that they have a workplace right, whether or not they exercise or propose to do the same. The Act provides overall protection against adverse action that includes, in either actual or threatened form, termination or dismissal of contract discrimination refusal to engage a person injuring an independent contractor or an employee altering an employee position by prejudice Mentioned above are specific protections. Apart from the same the Act provides general protections that extend employee protections beyond current levels. In case of an adverse action, it is not the employee but the employer who has to prove that the adverse action was not initiated. If the adverse action is proved, courts can slap fine or injunctions or suggest remedial measures to stop the breach18. References DLA Piper. 2013. Industrial Action Best Practice Guide. Available: http://www.dlapiperuknow.com/export/sites/uknow/products/files/uknow/Australia_Industrial_action_Best_practice_guide.pdf. Accessed May 18, 2014. Australian Government. 2013. Fair Work Ombudsman. Industrial Action. Available: http://www.fairwork.gov.au/ArticleDocuments/2221/FWO-Fact-sheet-Industrial-Action.pdf.aspx?Embed=Y. Accessed May 18, 2014. Owens R & Riley J, The Law of Work, 2nd edition,2010, OUP South Melbourne. Uq.edu.au. nd. fact Sheet: Protected Industrial Action. Available: http://www.uq.edu.au/shared/resources/personnel/ER/ProtectedIndustrialAction.pdf. Accessed May 18, 2014. Carvan J, Understanding the Australian Legal System 6th edition 2010 Thomson Reuters The Australian Workers' Union. nd. What is industrial action? Available: http://www.awu.net.au/industrial-action. Accessed May 18, 2014. Gardner, M and Palmer, G. (1997). Employment Relations: Industrial Relations and Human Resource Management in Australia. Creighton, B. 2000. One Hundred Years of the Conciliation and Arbitration Power: A Province Lost?’ 24 Melbourne University Law Review 839 Fenwick, C. nd. National Labour Law Profile: Australia. Available: http://www.ilo.org/ifpdial/information-resources/national-labour-law-profiles/WCMS_158892/lang--en/index.htm. Accessed May 18, 2014. Swirk.com.au. nd. Dispute resolution. Available: http://www.skwirk.com/p-c_s-18_u-130_t-362_c-1270/dispute-resolution/nsw/dispute-resolution/employment-issues/workplace-disputes. Accessed May 18, 2014. Fair Works Commission. nd. Awards and agreements. Available: https://www.fwc.gov.au/awards-and-agreements/minimum-wages-conditions. Accessed May 18, 2014. Stewart, A 2013, Stewart’s Guide to Employment Law, 4th ed. The Federation Press. Fitzroy Legal Services Inc. nd. Enforcement of entitlements under Workplace Agreements, Awards, National Employment Standards and contracts. Available: http://www.lawhandbook.org.au/handbook/ch15s01s07.php. Accessed may 18, 2014. Victoria Legal Aid. nd. Discrimination and victimisation. Available: http://www.legalaid.vic.gov.au/find-legal-answers/discrimination-harassment-and-bullying/discrimination-and-victimisation. Accessed May 18, 2014. Australian Human Rights Commission. nd. A guide to Australia's anti-discrimination laws. Available: https://www.humanrights.gov.au/guide-australias-anti-discrimination-laws. accessed May 18, 2014. Naughton, R. 1996. Employee Involvement at the Workplace: Does the Law Provide Sufficient Incentive for Change November, 1996). Johnson H 2005. Crime victimisation in Australia: key results of the 2004 international crime victimisation survey. Research and public policy series no 64. Canberra: Australian Institute of Criminology Cameron, C. nd. Understanding Fair Work Act. Available: http://www.rcsa.com.au/documents/webinr_recordings/20090930%20Fair%20Work%20Briefing%20General%20by%20Charles%20Cameron/Overheads%20-%20RCSA%20Fair%20Work%20%20Education%20Briefings%20General.pdf. Accessed May 18, 2014. Read More