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The Honourable Les Kaufman
Senior Deputy President, Fair Work Australia
EMPLOYMENT DISPUTES: ISSUES AND TRENDS
Lockouts to Break Strikes?
• Will employers lock out their employees as a tactic to bring to an end lawful employee/union industrial action?
• Have recent cases set a trend?
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© Commonwealth of Australia — Fair Work Australia 3
The Right to Strike
• 1973 – Australia ratified international conventions protecting the right to strike
• 1994 – Australia legislated to give effect to the conventions
• The making of certified agreements at an enterprise level was encouraged
• Industrial action could be protected from civil suit if taken in support of enterprise bargaining
© Commonwealth of Australia — Fair Work Australia 4
The Current Law
• Three types of protected industrial action:
– Employee claim action (s.409)
– Employee response action (s.410)
– Employer response action (s.411)
• Industrial action is only protected if authorized by a protected action ballot
• Notice is required for taking employee claim action, but no notice is required for employer response action.
© Commonwealth of Australia — Fair Work Australia 5
Employer Response Action
• Section 411 of the Fair Work Act:
Employer response action for a proposed enterprise agreement means industrial action that:
(a) is organised or engaged in as a response to industrial action by:
(i) a bargaining representative of an employee who will be covered by the agreement; or
(ii) an employee who will be covered by the agreement; and
(b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and
(c) meets the common requirements set out in Subdivision B.
Suspension /Termination of Protected Industrial Action
• Fair Work Australia has the power to suspend or terminate protected industrial action in exceptional circumstances
• The grounds are:
– Causing, or threatening to cause, significant economic harm to the employer and employees (for employee claim action) (s423(2))
– Causing, or threatening to cause, significant economic harm to any of the affected employees (s.423(3))
– Threat to endanger the life, safety or welfare of the population or part of it (s.424(1)(c))
– Threat to cause significant damage to the Australian economy or an important part of it (s.424(1)(d)).
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Suspension of Protected Industrial Action
• Fair Work Australia has the power to suspend protected industrial action
• Grounds for suspension are:
– If Fair Work Australia is satisfied that the suspension is appropriate to provide a “cooling off period” (s.425)
– If Fair Work Australia is satisfied that the protected industrial action is adversely affecting the employer or the affected employees (s.426(2))
– If Fair Work Australia is satisfied that the protected industrial action is threatening to cause significant economic harm to a third party (s.426(3))
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Workplace Determination
• If Fair Work Australia terminates protected industrial action
– No bargaining representative can take protected industrial action
– Parties have 21 day negotiating period
– If no agreement is reached Fair Work Australia must make an arbitrated workplace determination (s.266)
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The Qantas dispute
• Three protracted industrial disputes between Qantas and:
– Australian Licenced Aircraft Engineers Association;
– Transport Workers’ Union of Australia, and
– Australian and International Pilots Association
• All unions had concerns regarding the job security of their members.
• All unions took protected industrial action
• Qantas suffered financial and reputational damage
– Qantas was losing $15m per week as a result of the claim action
– 600 flights had been cancelled
– 70,000 passengers affected
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The Lock Out
• Qantas gave three days’ notice that it planned to lock-out its employees
• The entire fleet was grounded immediately
• Australian Government lodged an application under s.424 of the Act that Fair Work Australia terminate the protected industrial action
• Fair Work Australia held an urgent hearing over that weekend
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Full Bench Hearing
• The Full Bench found that the proposed lockout threatened to cause significant damage to the Australian economy, particularly to:
– Aviation industry, and
– Tourism industry
• The Bench opted to terminate rather than suspend the protected action
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The Aftermath
• The parties had 21 days to negotiate an agreement
• No agreement was reached
• ALAEA and Qantas later reached an agreement which became a consent Workplace Determination
• Workplace Determinations are being arbitrated by Fair work Australia for the pilots and TWU
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Schweppes and United Voice
• The company sought an agreement involving a significant change in the rostering of shifts
• The company wanted to introduce a 12 hour shift
• Employees had been accustomed to significant earnings as a result of overtime at penalty rates
• Employees engaged in protected industrial action
• Schweppes locked out its employees
• Schweppes managed to continue to meet productivity requirements through the use of management and contractors
• Workers set up a picket at the worksite
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Termination
• Soon after lockout (four days) Schweppes applied under s.423 to terminate the protected industrial action
• It argued that its lawful lockout was causing or threatening to cause significant economic harm to any of the employees who were to be covered by the agreement
• I declined to grant that application
• Six weeks after the lockout anonymous letters were mailed to my chambers
• I decided to call on the matter at Fair Work Australia’s initiative
• Both parties conceded that the protected action should be terminated
• No agreement was reached within 21 days. Matter listed for a workplace determination before a Full Bench.
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