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Defining Industrial Action

Published online by Cambridge University Press:  01 January 2025

Breen Creighton ,
Catrina Denvir  and
Shae McCrystal
Breen Creighton
Affiliation:
Graduate School of Business and Law, RMIT University
Catrina Denvir
Affiliation:
Ulster Legal Innovation Centre, Ulster University
Shae McCrystal
Affiliation:
The University of Sydney School of Law, University of Sydney
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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 clients 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 as 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.

Type
Article
Information
Federal Law Review , Volume 45 , Issue 3 , September 2017 , pp. 383 - 414
Copyright
Copyright © 2017 The Australian National University

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Footnotes

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 Action Ballots and Protected Industrial Action under the Fair Work Act: The Impact of Ballot Procedures on Enterprise Bargaining Processes.

References

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 & Stewart's Labour Law (Federation Press, 6th ed, 2016)Google Scholar [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 45D–45EA of the Competition and Consumer Act 2010 (Cth). See further Stewart et al, above n 2, ch 26; Carolyn, Sappideen, Paul, O’Grady and Joellen, Riley, Macken's Law of Employment (Lawbook, 8th ed, 2016)Google Scholar [14.80]–[14.410]; Marilyn, Pittard and Richard, Naughton, Australian Labour and Employment Law (Lexis Nexis, 2015)Google Scholar 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].

5 See, eg, Stewart et al, above n 2, [26.20]–[26.27]; Shae, McCrystal, The Right to Strike in Australia (Federation Press, 2010) 112–9, 242–3Google Scholar.

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.

7 See, eg, ‘Green bans revived to halt redevelopment of iconic Bondi building’, Workplace Express, 31 May 2016; ‘Mundey re-emerges for new Rocks green bans’, Workplace Express, 16 September 2016.

8 See, eg, Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No 2) [1972] 2 QB 455.

9 Freedom of Association and Protection of the Right to Organise Convention 1948 (No 87), opened for signature 9 July 1948, 68 UNTS 17 (entered into force 4 July 1950).

10 Right to Organise and Collective Bargaining Convention 1949 (No 98), opened for signature 1 July 1949, 96 UNTS 257 (entered into force 18 July 1951).

11 See Ruth, Ben-Israel, International Labour Standards: The Case of Freedom to Strike (Kluwer, 1987)Google Scholar; Tonia, Novitz, International and European Protection of the Right to Strike (Oxford University Press, 2003) 110–20Google Scholar. As to the substance of the jurisprudence see Bernard Gernigon, Alberto Odero and Horacio Guido, ILO Principles Concerning the Right to Strike (ILO, 2000)); see also Bernard, Gernigon, Alberto, Odero and Horacio, Guido, ‘ILO Principles Concerning the Right to Strike’ (1998) 137 International Labour Review 441Google Scholar; McCrystal, above n 5, ch 2.

12 See, eg, Novitz, above n 11, 120–3; Claire, La Hovary, ‘Showdown at the ILO? A Historical Perspective on the Employers’ Group's Challenge to the Right to Strike’ (2013) 42 Industrial Law Journal 338Google Scholar.

13 See ILC, Freedom of Association and Collective Bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations, 69th Session, 1983, Report III Part 4B, [200] (‘1983 General Survey’). See also ILC, Freedom of Association and Collective Bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, 1994, Report III Part 4B, [147]–[151] (‘1994 General Survey’); ILC, Giving globalisation a human face: General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalisation, 2008, 101st Session, 2012, Report III Part 1B, [117] (‘2012 General Survey’).

14 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).

15 ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (ILO, 5th ed, 2006) [545]–[546] (‘Digest’); 1994 General Survey, above n 13, [173]. Paragraph [126] of the 2012 General Survey, above n 13, is to the same effect.

16 Ibid, [174]. See further Jacobs, A T J M, ‘The Law of Strikes and Lockouts’ in Roger, Blanpain (ed), Comparative Labour Law and Industrial Relations in Industrialised Market Economies (Wolters Kluwer, 11th ed, 2014) 759–62Google Scholar.

17 Both Committees consider that purely political strikes do not fall within the scope of the right to strike—see 1994 General Survey, above n 13, [165]; 2012 General Survey, above n 13, [124]; Digest, above n 15, [528]–[529].

18 In Victoria v Commonwealth (1996) 187 CLR 416, 547 the High Court found that provisions in the Industrial Relations Act 1988 (Cth) ((‘IR Act’) (as amended in 1993) protecting the employer right to lockout were not ‘reasonably capable of being seen as appropriate and adapted’ to giving effect to the right to strike as required by Art 8(1)(d).

19 See, eg, ILO, Voluntary Conciliation and Arbitration Recommendation 1951 (No 92), cl 3(4). See also Digest, above n 15, [600], [853]. See also Jacobs, above n 16, 784–6.

20 C&A Act s 6.

21 C&A Act s 4. For detailed discussion of the legal definitions of strike and lockout in Australian statute law, see Edward I Sykes, Strike Law in Australia (Law Book, 2nd ed, 1982) ch 6.

22 Commonwealth Conciliation and Arbitration Act 1930 (Cth) s 4 repealed the definitions of strike and lockout, whilst s 6 repealed the statutory proscription of such conduct.

23 For judicial consideration of the nature of a strike see McKernan v Fraser (1931) 46 CLR 343, 360–1 (Dixon J), 372–8 (Evatt J); Kidd v Savage River Mines (1984) 6 FCR 398, 404–6 (Gray J).

24 The C&A Act did not contain any definition of ‘ban’, although up until 1977 it did contain a definition of ‘work ban’ for the limited purpose of the compulsory ballot provision in the then s 45—see further n 27, below.

25 Interestingly, the contempt was never formally purged. For discussion see Jack, Hutson, Penal Colony to Penal Powers (Amalgamated Metal Workers’ and Shipwrights’ Union, Revised ed, 1983) 265–80Google Scholar; W B, Creighton, W J, Ford and R J, Mitchell, Labour Law: Text and Materials (Law Book Company, 2nd ed, 1993) 833–40Google Scholar.

26 C&A Act s 4, as amended by 1977 Act s 3.

27 C&A Act s 45.

28 C&A Act s 143(1)(j).

29 C&A Act ss 5(1)(aa), 132A, 144A. See also Phillipa Weeks, Trade Union Security Law (Federation Press, 1996) 178–88; Creighton, Ford and Mitchell, above n 25, 1081–9.

30 Section 7(1) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (‘BCIIP Act’) defines ‘industrial action’ for the purposes of that Act in terms which are effectively identical to the definition in s 19(1) of the FW Act.

31 For detailed discussion of the ballot provisions see Breen Creighton, Catrina Denvir and Shae McCrystal, ‘Strike ballots and the law in Australia’ (2016) 29 Australian Journal of Labour Law 154.

32 FW Act ss 346(b), 342(1) item 1.

33 See also Stewart et al, above n 2, [26.72].

34 When read with s 545, this section provides for the issue of injunctions, making of orders for compensation, orders of reinstatement and/or the imposition of penalties in respect of breaches of the prohibition.

35 Failure to comply with such an order is enforceable by means of injunction in the Federal Circuit Court or Federal Court.

36 This provision appears to be entirely unused in practice, see Stewart et al, above n 2, 934–5.

37 See also Stewart et al, above n 2, 945–50 [26.58]–[26.69].

38 Note also that the Social Security Act 1991 (Cth) provides for disqualification from receipt of social security benefits for persons whose employment is interrupted by their participation in industrial action. See, eg, ss 500C, 553A, 596, 660XBE, 729AA, 759 and 771HB. For an example of the practical application of the forerunners of these provisions, see Savage v Director General of Social Services (1983) AILR 525.

39 FW Act ss 471–2.

40 See also below n 116 and accompanying text.

41 Note that s 524(1)(b)–(c) provides for stand down in circumstances which are not industrial action-related.

42 FW Act s 524(2). On occasion, a contract of employment may provide for stand down in the face of industrial action, in which case the same principles will apply. See also Stewart et al, above n 2, 440–1 [15.56].

43 [2013] VSC 105 (13 March 2013).

44 Ibid [34]. See also Ambulance Victoria v United Voice (2014) 245 IR 375, 382 [25].

45 Ibid [36].

46 Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 233 IR 223.

47 Ibid 242 [66].

48 (2009) 179 IR 441.

49 (1952) 74 CAR 84, 94, quoted in ibid 473 [90].

50 Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441, 473 [90].

51 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Commission (2010) 201 IR 363, 385 [109].

52 Offshore Marine Services Pty Ltd v The Maritime Union of Australia [2010] FWA 5196 (19 July 2010).

53 DP World Australia Ltd v The Maritime Union of Australia [2007] AIRC 646; Australian Workers Union v Bluescope Steel Ltd (2008) 171 IR 115; Pacific National Pty Ltd v Australian Rail, Tram and Bus Industry Union [2010] FWA 2884 (14 April 2010); Patrick Stevedores Holdings Pty Ltd v The Maritime Union of Australia [2015] FWC 3587 (29 May 2015); cf Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 147 ALD 528.

54 Re Boral Resources (NSW) Pty Ltd (2010) 193 IR 286, 290 [10]. See also Stewart et al, above n 2, 979 [27.16].

55 (1999) 91 FCR 463.

56 (2011) 210 IR 419.

57 (2014) 245 IR 375.

58 Mornington (2011) 210 IR 419, 423–4 [14]–[15].

59 Ibid 424 [17]–[18].

60 Ibid 424 [22].

61 Ibid 424 [23].

62 Ibid 425 [24]. See also at 425 [32].

63 Ibid 425 [25]. See also United Firefighters Union of Australia v Easy [2013] FCA 763 (2 August 2013) [154] (Ross J).

64 Mornington (2011) 210 IR 419, 432 [62].

65 Ibid.

66 Ibid 432 [63].

67 Ibid 432 [64].

68 Ibid 432 [65].

69 Ambulance Victoria (2014) 245 IR 375, 377 [5].

70 Ibid 381 [19].

71 Ibid 381 [20].

72 Ibid 382 [22]. See also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 147 ALD 528, 554 [141].

73 Ambulance Victoria (2014) 245 IR 375, 382 [23].

74 Ibid 382 [24].

75 Ibid.

76 [2004] AIRC 445 (11 May 2004) (Guidice J, Senior Deputy President Harrison and Commissioner Simmonds), reported as The Age Company Ltd v CEPU (2004) 133 IR 197, [46].

77 Note, however, that strictly speaking the passage referred to in the legislative note is obiter, see below n 108 and accompanying text.

78 [2014] FWC 5676 (20 August 2014) [17] (‘Lend Lease’).

79 See, eg, Ambulance Victoria (2014) 245 IR 375, 383 [27] (Tracey J).

80 Australian and International Pilots Association v FWA (2012) 202 FCR 200, 210 [47].

81 Ibid.

82 Australian Municipal, Administrative, Clerical and Services Union v Maurice Blackburn Pty Ltd [2016] FWC 4740 (14 July 2016).

83 Australian Electoral Commission, Declaration of Result, Protected Action Ballot, United Firefighters’ Union of Australia v Country Fire Authority, FWC Matter Number B2015/764.

84 Ibid.

85 ASU v Central Highlands Water, [2016] FWC Order—PR576164 (Unreported, FWC, Commissioner Wilson, 18 January 2016).

86 Mortimore v Construction, Forestry, Mining and Energy Union [2010] FCA 537 (24 May 2010) [14]. This case arose out of an application for injunctive relief under s 39 of the BCII Act, but the definition of ‘building industrial action’ under that Act was relevantly the same as that in s 19 of the FW Act. See also Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 (2 June 2011); Alfred v Construction, Forestry, Mining and Energy Union (No 2) [2011] FCA 557 (2 June 2011).

87 See J Lyons & Sons v Wilkins [1899] Ch 255; Re Van der Lubbe (1949) 49 SR (NSW) 309; Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760. Cf Ward, Lock & Co Ltd v Operative Printers’ Assistants Society (1906) 22 TLR 327; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, 261 (Crennan J), 264 [58], [72] (Gageler J), where the High Court characterised a particular picket as a ‘lawful protest’.

88 See Creighton, Ford and Mitchell, above n 25, ch 36; McCrystal, above n 5, 99–101; Stewart et al, above n 2, 937–40 [26.41]–[26.44], 959–60 [26.88].

89 See above n 15, and accompanying text.

90 (1998) 89 FCR 200, 211–3.

91 (1999) 91 FCR 463.

92 Later amended by Work Choices in 2005.

93 (1999) 91 FCR 463, 491 [71].

94 Ibid. See also 486 [52].

95 Ibid 491 [72]–[73].

96 See, eg, Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] 260 IR 304.

97 See, eg, Co-Operative Bulk Handling Ltd v The Maritime Union of Australia [2013] FCA 940 (2 July 2013); Williams v AMWU (No 2) [2009] FCA 103 (17 February 2009) (involving the relevantly identical provision in s 44 of the BCII Act).

98 See, eg, Transfield Construction v AMWU [2002] FCA 1413 (20 November 2002); CEPU v Australian Postal Corporation (Unreported, Federal Court of Australia, Finkelstein J, 26 February 2004); Saint-Gobain Warehousing Pty Ltd v NUW (2006) 158 IR 80, [11]. In Mortimore v Construction, Forestry, Mining and Energy Union [2010] FCA 537 (24 May 2010), Tracey J was prepared at least to countenance the possibility that picketing could constitute building industrial action: [16]–[17].

99 See Williams v AMWU (No 2) (2009) 184 IR 367. Note in particular Jessup J's discussion at [34]–[35] of the decision of Kenny J in Cahill v Construction, Forestry, Mining and Energy Union (2008) 170 FCR 357, and his rejection of the suggestion that that case had distinguished David's Distribution. See also Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2014) 426 IR 304.

100 Commonwealth, Royal Commission on Trade Union Governance and Corruption, Law Reform and Policy (2015) vol 5 ch 8, [190] and Recommendation 66(b).

101 Stewart et al, above n 2, [26.26]. Section 47 of the BCIIP Act does, however, proscribe ‘unlawful picketing’ in the building and construction industry.

102 See, eg, IR Act ss 170PG(3)–(6), 170PI(2). Section 170PG(4) provided that the reference in s 170PG(3) to locking out employees was ‘a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts’.

103 WR Act s 420(3).

104 See, eg, Australian Airline Flight Engineers’ Association v Qantas Airways Ltd—Q4688 (Unreported, Australian Industrial Relations Commission, 7 August 1998); Australian Federation of Air Pilots v Kendell Airlines (Australia) Pty Ltd—PR920361 [2002] AIRC 850 (23 July 2002).

105 (2013) 233 IR 322.

106 (2000) 100 FCR 395.

107 Ibid 406 [30].

108 See Productivity Commission, Workplace Relations Framework, Inquiry Report No 76 (2015) vol 2, 896–9.

109 The Age Case (2004) 133 IR 197, 208–9 [46].

110 AMWU and CEPU v The Age Company Limited, PR944258 [2004] AIRC 212 (9 March 2004).

111 Ibid [83].

112 The Age Case (2004) 133 IR 197, 206 [33].

113 Ibid 206 [34].

114 Ibid.

115 Ibid 206 [35].

116 Ibid.

117 [2010] FWA 3454 (29 April 2010) [31].

118 The expansive approach to the obiter comments in The Age Case is also supported by the Explanatory Memorandum, Fair Work Bill 2008 (Cth) [90].

119 See, eg, CEPU v Laing (1998) 89 FCR 17; Secretary, Department of Education & Early Childhood Development (Victoria) v AEU [2010] FWA 3775 (13 May 2010) (Senior Deputy President Kaufman).

120 FW Act ss 409(1) and 410(1).

121 [2012] FWAFB 350 (12 January 2012). See also Construction, Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Ltd (2008) 175 IR 243.

122 [2014] FWCFB 2063 (11 April 2014) [50].

123 [2008] AIRCFB 24 (15 January 2008). See also Patrick Stevedores Holdings Pty Ltd v The Maritime Union of Australia[2015] FWC 3587 (29 May 2015); The Maritime Union of Australia v Patrick Stevedores Holdings Pty Ltd [2014] FWC 2651 (22 April 2014) [187].

124 The employer-agreement exclusion was included in the original definition in 1977, and has been retained ever since. The employee agreement exclusion was inserted in 1988.

125 See also Stewart et al, above n 2, [26.69].

126 See, eg, AWU v BlueScope Steel Ltd [2008] AIRCFB 24 (15 January 2008); United Voice v Foster's Australia Limited [2014] FWCFB 4104 (2 July 2014).

127 WR Act s 420(4), as amended by Work Choices in 2005.

128 [2003] AIRC 373 (9 April 2003) [46]. On the effect of failure to follow safety procedures, see Cahill v Construction, Forestry, Mining and Energy Union [2008] FCA 495 (11 April 2008) [36], [38].

129 Ibid. See also Construction, Forestry, Mining and Energy Union v Beltana Highwall Mining Pty Ltd [2012] FWA 2796 (22 June 2012) [76]–[77].

130 Monadelphous Engineering Associates Pty Ltd v AWU—PR934966 [2003] AIRC 854 (18 July 2003) [37].

131 Ibid; quoting Franklyn J in Wormald Security Australia Pty Ltd v Peter Rohan, Department of Occupational Health, Safety and Welfare (1993) 74 WAIG 2, 3.

132 See, eg, Qantas Airways Limited v NUW [2007] AIRC 167 (5 March 2007); Offshore Marine Services Pty Ltd v The Maritime Union of Australia [2010] FWA 5196 (19 July 2010).

133 See above nn 24–5 and accompanying text.

134 This form of words was used in s 32(1)(a)(ii) of the C&A Act at the time of its repeal in 1988.

135 HB Higgins, ‘A New Province for Law and Order’ (1915) 29 Harvard Law Review 13, 13–4.

136 Mortimore v Construction, Forestry, Mining and Energy Union [2010] FCA 537 (24 May 2010) [14]; Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 556 (2 June 2011); Alfred v Construction, Forestry, Mining and Energy Union [2011] FCA 557 (2 June 2011).

137 Trade Disputes Act 1906 (UK).

138 Industrial Relations Reform Act 1993 (Cth) s 31.

139 See McCrystal, above n 5, 242–3.

140 See DC Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014), 229–30.

141 [2013] VSC 105.

142 Ibid.

143 See, eg, Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, where an employee was found lawfully to have been terminated from his employment due to his conduct on a picket which was considered by the employer to breach company policy. While the employee concerned was not technically engaged in protected industrial action at the time he participated in the picket (as he was rostered off), it would not have made any difference if he had been engaging in such action because the picket did not constitute industrial action and therefore was not protected.

144 See also Chris, Briggs, ‘Lockout Law in a Comparative Perspective: Corporatism, Pluralism and Neo-Liberalism’ (2005) 21 International Journal of Comparative Labour Law and Industrial Relations 481Google Scholar.

145 For discussion of the flawed logic which underpins the parity of legal treatment of strikes and lockouts, see Novitz, above n 11, 7–8.

146 See, eg, Schweppes Australia Pty Ltd v United Voice—Victorian Branch (No 1) [2011] FWA 9329 (29 December 2011), in which 155 employees were locked out for 58 days in response to notification of a range of work bans and stoppages of between 60 minutes and 24 hours.

147 (2013) 233 IR 322.