Fair Work Commission

The Fair Work Act defines industrial action by employees as:

• performing their work differently to the way it is normally performed
• a ban, limitation or restriction on the performance of work
• a failure or refusal to attend or perform work

It defines industrial action by employers as the locking out of employees from their employment.

The Fair Work Act distinguishes between 'protected' (lawful) industrial action taken during bargaining for a new agreement and 'unprotected' (unlawful) industrial action.

Certain legislative requirements must be met before industrial action is protected. A majority of employees must approve a list of proposed actions in a workplace ballot process, called a protected action ballot. The Commission can order a protected action ballot if satisfied that the employees' bargaining representative has been and is genuinely trying to reach agreement with the employer.

The Commission may make orders to stop or prevent industrial action in specified circumstances.

The Commission received a total of 1,272 applications in relation to industrial action in 2015–16, which was 33.2 per cent higher than in 2014–15. These include applications for protection action ballots, applications to extend, vary or revoke ballot orders, applications to suspend or terminate protected industrial action, and applications for orders to stop industrial action.

The increase can be explained by a rise in the number of applications for protected action ballot orders, from 641 in 2014–15 to 960 in 2015–16, as a result of a bargaining round in the education sector. The Queensland and Northern Territory branch of the Indepdendent Education Union of Australia (IEU), representing teachers and support staff at Queensland's 298 Catholic schools, filed applications for protected action ballot orders for 272 schools during agreement negotiations with the Queensland Catholic Education Commission (QCEC). The Commission granted the applications in August 2015.

Industrial action occurred following the granting of the ballot orders. In May 2016 IEU and QCEC agreed to participate in the Commission's New Approaches program after formally beginning bargaining in March 2016. In July 2016 they reached an in-principle agreement, placing on record their appreciation of the Commission's assistance in resolving outstanding matters. Employees overwhelmingly approved the in-principle agreement the following month in workplace ballots.

Terminating or suspending protected action

The Commission must suspend or terminate protected industrial action where it is endangering the life, personal safety, health or welfare of the population, or part of it, or causing significant damage to the Australian economy. The Commission must, as far as practicable, determine these applications within five days of lodgment, or make an interim order suspending the action if this timeframe cannot be met.

In 2015–16, the Commission received 14 applications to suspend or terminate protected industrial action, and 3 applications to suspend it for a cooling off period.

Unprotected industrial action

Where industrial action, or threatened industrial action, is unprotected, an application can be made to the Commission to stop or prevent it. The Commission is required to determine these applications within two days of lodgment, or make an interim order stopping the action within two working days. In 2015–16, the Commission received 67 applications under s.418 of the Fair Work Act for an order to stop or prevent industrial action, compared with 107 in 2014–15.

Dealing with industrial action

The Commission has processes in place to meet the short timeframe for dealing with industrial action applications, particularly those relating to unprotected action or protected industrial action causing or threatening to cause significant economic harm to the parties. When an urgent application is made, Commission staff alert the relevant Panel Head's chambers, ensuring that the matter can be quickly allocated to a Member. Panel Heads and Members are contacted outside of normal business hours if necessary. To help resolve them quickly, Members may then hear urgent matters out of hours, including on weekends.

If a matter cannot be resolved within the legislative timeframe, the presiding Member is able to issue an interim order until a final order is issued.

Timeliness

In 2015–16, the Commission achieved its internal KPI of dealing with all applications relating to industrial action within three days for 50 per cent of applications. It dealt with 90 per cent of applications within eight days.