Defining Industrial Action

AuthorCatrina Denvir,Shae McCrystal,Breen Creighton
Publication Date01 Sep 2017
DOI10.22145/flr.45.3.2
SubjectArticle
DEFINING INDUSTRIAL ACTION
Breen Creighton*, Catrina Denvir** and Shae McCrystal***
ABSTRACT
Unions engaged in enterprise bargaining under the Fair Work Act 2009 (Cth) (FW Act)
frequently exhibit considerable creativity in the forms of industrial action they take in
order to pressurise employers to make concessions in bargaining. Examples of such
conduct can include sending emails with the Caps Lock function turned on, wearing
union campaign clothing or insignia whilst at work, and communicating with c lients
and customers of the target employer about the employees industrial campaign.
This creativity is pushing the definition of industrial action in s 19 of the FW Act to
its outer limits. This is important due to the fact that many aspects of the bargaining
regime established under the FW Act turn upon whether particular conduct falls within
the statutory definition. These include provisions concerning the lawfulness or
otherwise of industrial action; access to orders to stop or prevent unprotected industrial
action; payment of wages for periods when employees are engaging in industrial action;
and employers capacity to stand down employees without pay where they cannot
usefully be employed because of industrial action which does not involve the employer
or its employees.
This article traces the current definition back to its origins in the system of
conciliation and arbitration that operated in Australia throughout most of the 20th
century. That system treated all industrial action as unlawful at statute and/or common
law. The definition has not been significantly changed since the replacement of that
system by one based on enterprise based bargaining, accompanied by limited
recognition of the capacity lawfully to take industrial action in the course of such
bargaining. Reviewing the current definition and its practical operation in its social,
historical, and international context, the article concludes that the definition is not fit for
* Graduate School of Business and Law, RMIT University.
** Director, Ulster Legal Innovation Centre, Ulster University.
*** The University of Sydney School of Law, University of Sydney. The authors would like to
thank the audience participants at the Australian Labour Law Association Conference held
in Melbourne in November 2016, Joellen Riley and the anonymous referees for helpful
comments on an earlier version of this paper. This paper is based on research funded by the
Australian Research Council under Grant ID DP140100902: Breen Creighton, Richard
Johnstone and Shae McCrystal, ‘Protected A ction Ballots and Protected Industrial Action
under the Fair Work Act: The Impact of Ballot Procedures on Enterprise Bargaining Processes.
384 Federal Law Review Volume 45
_____________________________________________________________________________________
purpose, and proposes that it should be revised in order better to accord with the
purposes of the legislation and with the bargaining regime it establishes.
I INTRODUCTION
AN EMAIL WRITTEN IN CAPS LOCK IS AN IRRITATION TO THE RECIPIENT AND
CAN DISRUPT THE EFFICIENT FUNCTIONING OF A BUSINESS.
1
Customer services
officers wearing union t-shirts, or airline pilots interrupting passengers to tell them
about an industrial campaign, can be marginal inconveniences to the customers of a
business. B ut the legal status of these annoyances or inconveniences can be of great
significance to the operation of the bargaining regime put in place by the FW Act. That
is because the question of whether such conduct constitutes industrial action within
the definition of that term in s 19 of the FW Act can have significant legal consequences.
First, in a common law jurisdiction like Australia, most, if not all, worker industrial
action would be unlawful as either or both of a tort and a breach of the workers contract
of employment. Historically, it was commonly also unlawful under statute.
2
The FW Act
now provides some protection against common law and statutory liability for unions
and employees who engage in industrial action in the context of negotiations for a single-
enterprise agreement, but the protection extends only to action which falls within the s
19 definition. Any action which falls outside that definition will almost invariably be
unlawful at common law and/or under statute.
Second, many (but not all) of the statutory liabilities for unprotected industrial action
under the FW Act turn upon whether the conduct in question falls within the statutory
definition. For example, s 418 of the FW Act enables an employer confronted by
unprotected industrial action to seek an order from the Fair Work Commission (FWC)
requiring that the action cease or not occur. Such orders can, in turn, be enforced in the
Federal Court.
3
Third, the FW Act makes it unlawful for an employer to pay wages in respect of a
period where an employee has engaged in industrial action, and for an employee to seek
or to accept such payment.
4
Any lack of c larity around whether action constitutes
industrial action could leave the employer or employees facing civil penalties where
payment was not withheld for action that did constitute industrial action, whilst an
employer could face penalties if they withheld wages in respect of action which did not
fall within the statutory definition.
1
For example, because communications need to be recalibrated before they can be sent to
clients or customers of the employer.
2
For discussion of these historical exposures, see Andrew Stewart, Anthony Forsyth, Mark
Irving, Richard Johnstone and Shae McCrystal, Creighton & Stewarts Labour Law (Federation
Press, 6th ed, 2016) [3.05][3.19]. For discussion of contemporary exposures see [26.11]
[26.106].
3
Such action may also be unlawful at common law and/or under provisions such as ss 30J
and 30K of the Crimes Act 1914 (Cth) or ss 45D45EA of the Competition and Consumer Act 2010
(Cth). See further Stewart et al, above n 2, ch 26; Carolyn Sappideen, Paul OGrady and
Joellen Riley, Mackens Law of Employment (Lawbook, 8th ed, 2016) [14.80][14.410]; Marilyn
Pittard and Richard Naughton, Australian Labour and Employment Law (Lexis Nexis, 2015) ch
18.
4
There are, however, qualifications to this in respect of partial work bans. See generally
Stewart et al, above n 2, [26.56][26.69].
2017 Defining Industrial Action 385
_____________________________________________________________________________________
Finally, s 524 of the FW Act permits an employer to stand down an employee without
pay in circumstances (inter alia) where the employee cannot usefully be employed
because of … industrial action’ (other than that employers own industrial action). Here,
the ability of employees who are not themselves taking industrial action to earn wages
may t urn on whether or not the conduct of co-workers, or the employees of another
business altogether, falls within the s 19 definition.
Manifestly, therefore, clarity in the d efinition of industrial action under t he FW Act
is of critical practical significance for a range of parties. As the examples outlined above
demonstrate, unions engaged in enterprise bargaining under the FW Act often exhibit
considerable creativity in the forms of industrial action they take in order to pressure
employers t o accede t o their demandspreferably with minimum loss of income or
other inconvenience for t he employees concerned. Such creativity is pushing at the
boundaries of the statutory definition, and one of the principal findings of this article is
that the definition is increasingly unfit for purpose.
The meaning and effect of the term industrial action has been examined by a
number of authors in a number of contexts.
5
However, there has not so far been any in-
depth examination of the current definition in its social, historical or international
context. With that in mind, this article starts with an examination of the concept of
industrial action. It then traces the approach to the definition of industrial action (and
cognate terms) in Australia over the years, culminating in s 19 of the FW Act.
6
This is
followed by a detailed examination of the meaning and effect of s 19 as it has been
applied by the courts and tribunals.
This examination clearly suggests that the s 19 definition is fundamentally flawed
both in principle and in practice. This is largely a consequence of the fact that it is very
much the product of a regulatory regime that was directed to the proscription of
industrial action rather than its protection. The FW Act now purports both to proscribe
and to protect. As indicated, it adopts a definition that is not fit for either purpose. As a
result, it is almost impossible for stakeholders to determine what forms of industrial
action are and are not legally permissible, or to ascertain what are to be the legal and
other consequences of engaging in certain forms of industrial conduct. The legislation
also denies protection to certain forms of worker behaviour that ought to be protected
to ensure that Australia gives proper effect to its obligations in international law. Bearing
these considerations in mind, the authors offer a number of suggestions for an approach
to the definition of industrial action that address the ambiguities and conceptual
confusion that characterise the current provision.
5
See, eg, Stewart et al, above n 2, [26.20][26.27]; Shae McCrystal, The Right to Strike in Australia
(Federation Press, 2010) 1129, 2423.
6
Legislation in all of the States except Tasmania and Victoria includes definitions of industrial
action’—see Industrial Relations Act 1996 (NSW) s 4 and Dictionary; Industrial Relations Act
1999 (Qld) s 4 and Schedule 5; Fair Work Act 1994 (SA) s 4; and Industrial Relations Act 1979
(WA) s 7. With the referral of legislative power by all jurisdictions apart from Western
Australia, the State definitions are now of limited practical relevance, and are not examined
in this article.

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