Employee claim action

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Employee claim action process under the Fair Work Act

See Fair Work Act s.409

The majority of protected industrial action taken is employee claim action. The following diagram illustrates the process by which industrial action may be taken that is protected.

Applications for protected action ballot order made by bargaining representative:
- Cannot be made earlier than 30 days before nominal expiry date of enterprise agreement
- There must have been a notification time in relation to the proposed enterprise agreement
Within 24 hours of making application, applicant must give copy of application to employer
Commission must, as far as praticable, determine application within 2 working days
Protected action ballot order made by Commission
Protected action ballot conducted by Australian Electoral Commission or other specified ballot agent
Vote by employees included on roll of voters
Protected action ballot agent must declare and inform about result

(Fair Work Commission must publish result on website)
- - If industrial action is authorised by protected action ballot...
    
    Employees have 30 days to commence action
  - Written notice of at least 3 working days must be given to the employer
    
    The Commission may extend the notice period where there are exceptional circumstances (Notice must specify the nature of the action and the day on which it will start)
  - Protected employee claim action taken
- - If industrial action is NOT authorised by protected action ballot then any industrial action taken will NOT be protected

Employee claim action is industrial action for a proposed enterprise agreement:

that is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement, and
where the claims are only about, or reasonably believed to be about, permitted matters.

The industrial action must be organised or engaged in:

against an employer that will be covered by the proposed enterprise agreement, and:
- by a bargaining representative of an employee who will be covered by the proposed enterprise agreement, or
- by an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action.

Note: If a union is a bargaining representative of an employee who will be covered by the proposed enterprise agreement, the reference to a bargaining representative of the employee includes a reference to an officer of the union.^[1]

What constitutes a reasonable belief depends on the circumstances of the case and the person concerned.^[2]

Example

The Commission would expect an official of a union with extensive experience in enterprise bargaining to have a greater appreciation of the limits of the permitted matters than a novice employee bargaining representative who has been appointed by his or her colleagues to represent them in bargaining with the employer.^[3]

Permitted matters

See Fair Work Act s.172(1)

The following matters are permitted to be included in an enterprise agreement:

matters pertaining to the employer – employee relationship
matters pertaining to the employer – union relationship
terms about deductions from wages, and
terms about how the agreement will operate.

Note: The Enterprise agreements benchbook contains detailed information and links to cases setting out types of agreements and the process to make, vary and terminate them; including detailed information on permitted matters.

Requirements for employee claim action

See Fair Work Act s.409

The Fair Work Act sets out specific requirements which must be met before employee claim action can be taken:

employee claim action must be authorised by a protected action ballot
employee claim action must not be in support of or to advance claims to include unlawful terms in the agreement
a bargaining representative of an employee who will be covered by the proposed enterprise agreement must not be engaging in pattern bargaining in relation to the proposed enterprise agreement, and
the employee claim action must not, if it is being organised or engaged in by a bargaining representative, relate to a significant extent to a demarcation dispute or contravene a Commission order that relates to a significant extent to a demarcation dispute.

Related information

Unlawful terms

See Fair Work Act s.194

Employee claim action must not be in support of or to advance claims to include unlawful terms in an enterprise agreement.^[4] A term of an enterprise agreement is an unlawful term if it is:

a discriminatory term
an objectionable term
a term that would allow an employee or employer to opt-out of coverage of the agreement
an objectionable emergency management term
a term, where an employee would be protected from unfair dismissal after completing the minimum employment period, that confers an entitlement or remedy in relation to unfair termination of the employee’s employment before the employee has completed that period
a term that excludes the application of the unfair dismissal provisions in Part 3–2 of the Fair Work Act to a person, or modifies the application of these provisions in a way that is detrimental to, or in relation to, a person
a term that is inconsistent with a provision of Part 3–3 of the Fair Work Act (which deals with industrial action)
a term that provides for an entitlement to enter premises for certain purposes, which is not in accordance with the right of entry provisions in Part 3–4 of the Fair Work Act
a term that provides for the exercise of a State or Territory OHS right other than in accordance with the right of entry provisions in Part 3–4 of the Fair Work Act, or
a term that requires or permits superannuation contributions for a default fund employee to be made to a superannuation fund that does not satisfy one of the following:
- offers a MySuper product
- is an exempt public sector scheme, or
- is a fund of which a relevant employee is a defined benefit member.

Meaning of discriminatory term

As set out above, a discriminatory term is also an unlawful term. A discriminatory term is a term that discriminates against an employee covered by the enterprise agreement because of, or for reasons including race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion or political opinion, national extraction or social origin.

A term of an enterprise agreement does not discriminate against an employee:

if the reason for the discrimination is the inherent requirements of the particular position concerned, or
merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
- in good faith, and
- to avoid injury to the religious susceptibilities of adherents of that religion or creed.

A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

An inherent requirement is something essential to the position, rather than something added to it.

all junior employees, or a class of junior employees, or
all employees with a disability, or a class of employees with a disability, or
all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

Meaning of objectionable term

As noted above, an objectionable term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

An objectionable term is a term that requires or permits a contravention of the Fair Work Act’s general protections provisions or the payment of a bargaining services fee.

A bargaining services fee is any fee payable to an industrial association, or to someone in lieu of an industrial association, for the provision of bargaining services. This does not include membership fees. Industrial associations can offer bargaining services on a fee for service basis where an individual voluntarily enters into a contract.

Meaning of objectionable emergency management term

As set out above, a objectionable emergency management term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

A term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of:

restricting or limiting the body's ability to do any of the following:
- engage or deploy its volunteers
- provide support or equipment to those volunteers
- manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers
- otherwise manage its operations in relation to those volunteers, or
requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in s.195A(1)(a), or
restricting or limiting the body's ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community, or
requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

However, a term of an enterprise agreement is not an objectionable emergency management term if:

both of the following apply:
- the term provides for the matters required by s.205(1)–(1A) (which deal with terms about consultation in enterprise agreements)
- the term does not provide for any other matter that has, or is likely to have, the effect referred to in s.195A(1), or
the term is the model consultation term.

Sections 195A(1)(a), (b), (c) and (d) do not limit each other.

Meaning of designated emergency management body

A body is a designated emergency management body if:

either:
- the body is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory, or
- the body is a recognised emergency management body that is prescribed by the regulations for the purposes of s.195A(4), and
the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

However, a body is not a designated emergency management body if the body is, or is a part of a body that is, prescribed by the regulations for the purposes of this subsection.

Meaning of volunteer of a designated emergency management body

A person is a volunteer of a designated emergency management body if:

the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity), and
the person is a member of, or has a member-like association with, the body.

Limited application of objectionable emergency management term for certain terms

If:

a term of an enterprise agreement deals to any extent with the following matters relating to provision of essential services or to situations of emergency:
- directions to perform work (including to perform work at a particular time or place, or in a particular way)
- directions not to perform work (including not to perform work at a particular time or place, or in a particular way), and
the application of s.195A(1) in relation to the term would (apart from this subsection) be beyond the Commonwealth’s legislative power to the extent that the term deals with those matters;

then s.195A(1) does not apply in relation to the term to that extent.

Note: See paragraph (l) of the definition of excluded subject matter in s.30A(1) and s.30K(1).

References

^[1] Fair Work Act s.409(7).

^[2] Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union and Ors [2015] FWCFB 210 (Ross J, Hatcher VP, Simpson C, 10 February 2015) at para. 40; citing Australian Postal Corporation v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Communications Division [2010] FWAFB 344 (Kaufman SDP, Ives DP, Lewin C, 20 January 2010) at para. 48.

^[3] Explanatory Memorandum to Fair Work Bill 2008 at para. 1642.

^[4] Fair Work Act s.409(3).

Updated time

Last updated

07 October 2019

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