Friday, March 30, 2012

Fair Work Australia and Industrial Action

I was surprised to read of the petrol shortages in the UK caused by tanker driver's industrial action.  Surprised 'cos in this day-and-age I beleived most progressive western countries had resolved such 'Cowboy/militant industrial actions' - especially those that had an unfair impact on third parties such as members of the public.

Here in Australia we have Fair Work Australia (FWA), a new industrial arbitrator set up by the federal government.

Fair Work Australia is the national workplace relations tribunal. It is an independent body with power to carry out a range of functions relating to:
  1. the safety net of minimum wages and employment conditions
  2. enterprise bargaining
  3. industrial action
  4. dispute resolution
  5. termination of employment
  6. other workplace matters.

Fair Work Australia is the national workplace relations tribunal that was established by the Labor Government under the Fair Work Act 2009. 
The Fair Work Act established a new system of regulation that attempted to create a more national system for regulating industrial relations in Australia. 

Essentially, each state had the discretion to hand over some or all of their industrial relations powers to the Commonwealth on the understanding that should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state will effectively be covered by the national Fair Work Act. 

This new national body has taken over the roles of the Australian Industrial Relations Commission (AIRC) in the workplace when dealing with workplace dispute and industrial actions, and in the process determining national industrial relations policies that include setting minimum wages and regulating the award system.

Since the introduction of the Fair Work Act, all states have referred their powers to the Commonwealth with the exception of Western Australia. 

In all states, except Western Australia, there are two types of industrial actions "Protected" and "Unprotected". 

Basically, for industrial action to be lawful it must be protected industrial action.

The requirements for taking protected industrial action include:
  • an existing agreement has passed its nominal expiry date
  • the industrial action is in support of a new enterprise agreement (or is in response to industrial action by the other side)
  • the industrial action does not involve pattern bargaining
  • in the case of employees initiating action in support of claims, Fair Work Australia has granted an order for a protected action ballot to be held and the ballot has endorsed action being taken
  • the required notice has been given to the other party
  • the bargaining representative(s) organising the action, or representing the employees who are taking or organising the action, must be genuinely trying to reach agreement.
Industrial action will not be protected if it:
  • is taken while the bargaining period has been suspended
  • relates significantly to a demarcation dispute
  • is in support of claims for a multi-enterprise or greenfields agreement
  • is in support of the inclusion of claims that cannot be lawfully included in an agreement (these are known as unlawful terms), or
  • contravenes any orders made by Fair Work Australia.
The introduction of the FWA legislation has had a dramatic impact on 'rogue' industrial actions, giving all parties in a dispute an independent umpire who is empowered to make rulings that must be complied with or the defaulters will suffer huge monetary penalties and/or gaol terms.

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