What it takes to take protected action

As bargaining gets under way for a new Catholic systemic enterprise agreement covering nearly 20,000 members in over 600 schools, IEU Industrial Officer Michael Wright explains the process of taking industrial action.

In Australia, when workers in education or any other sector have wanted to reinforce a claim for increased wages or manageable workloads or reasonable hours or other conditions, they’ve taken industrial action as a way of exercising their collective power to focus their employer’s attention on their needs.

Without the capacity to take industrial action, employees as a group have poor prospects of changing a belligerent employer’s stance in negotiations.

History: Arbitration and awards

Up until the 1990s, industrial action, while technically unlawful, was used by groups of employees who faced an unreasonable employer – either in the bargaining process or in how their workplaces operate.

Of equal importance, industrial tribunals at both state and federal level could, upon application by unions, make enforceable awards through arbitration of the parties’ claims. Arbitration governed wages and conditions across industries and workplaces, thereby reducing the need to pressure employers to agree through industrial action.

This system of federal and state arbitrated awards provided a means of achieving proper wages and conditions for Australian workers. The series of work value cases that the IEU and other unions ran between about 1950 and the mid-1990s are testament to that.

Until the 1990s, industrial action was not the only means of winning better wages and conditions. Empirical data, evidence of work performed and persuasive arguments before an industrial tribunal also facilitated better wages and conditions. Because of the award system, workers did not necessarily need to strike for better wages and conditions or to resolve other workplace disputes.

WorkChoices: Your rights restricted

This all started to change in the 1990s, culminating in the Workplace Relations (WorkChoices) Act 2005 (known as the Work Choices regime under then PM John Howard).

The new laws virtually abolished the arbitrated award system as a mechanism for increasing wages, conditions and dignity in the workplace.

WorkChoices also narrowed the concept of industrial action to “protected” industrial action. For industrial action to be protected, it must meet a narrow set of legal requirements. Taking action that is not “protected” leaves both unions and members exposed to fines and claims for damages. This legislative framework remains effectively unchanged today.

The union movement has campaigned for change to this restrictive regime, and the International Labour Organisation (ILO) has long been critical of Australia’s limited right to take industrial action for not conforming with basic ILO conventions.

Dissenting voices

In 2021, ACTU Secretary Sally McManus decried the draconian protected action process. “It’s like being tied to a chair and asked to stand up,” she said.

“We can only take lawful industrial action in a very, very narrow timeframe, according to complicated laws, with motions and votes rubber stamped. It’s like you’ve got to wait until Venus is in this part of the sky and the moon’s rising at exactly this point, then you can do it.”

The Bishop of Parramatta, the Most Reverend Vincent Long Van Nguyen, has said: “Tight restrictions on industrial action, particularly during wage negotiations, further reduces the collective power of workers.” The union shares this concern.

The Secretary of the South Coast Labour Council, Arthur Rorris, addressed the right to strike at the IEU’s Activists Conference in 2021. “Simply having the right to withdraw your labour does not mean you’re going to withdraw your labour at every opportunity,” Rorris said.

“In fact, we often find the opposite: if the employer knows you can withdraw your labour, they’re more likely to come to the table and negotiate because they know you’ve got a countervailing sanction on them.”

Example of a Protected Action Ballot
Here are some questions that have previously been put to members during a Protected Action Ballot:
Do you, for the purpose of advancing claims in the negotiation of a new enterprise agreement, authorise industrial action which may involve you and/or other employees at your school engaging in any or all of the following forms of action which may be taken separately, concurrently and/or consecutively:
the wearing or display in any way of insignia, slogans and/or any other material concerning the Union campaign about the enterprise agreement. [Yes / No]
the provision of information (in any form) concerning the views of employees about any aspect of the Union campaign to members of the community including parents and/or any other member of the community, including the media [Yes / No]
an unlimited number of stoppages of work for part of an hour, or one or more full or part hours duration or one or more full or half days in duration. [Yes / No]

Steps to engaging in protected industrial action

For the IEU to facilitate protected industrial action, the union and its members need to meet various requirements:

  • The existing EA must have expired and good faith bargaining with the employer must have failed (bargaining must relate to “permitted matters”).
  • Protected action cannot be taken to advance a multi- enterprise agreement or MEA (this is an agreement between two or more employers and their employees). The Catholic Systemic Schools EA is not an MEA. (In 2017, Catholic systemic employers tried to argue it was an MEA, but the Fair Work Commission rejected this.)
  • The union must apply to the Fair Work Commission for a Protected Action Ballot Order after bargaining has commenced. The application has to nominate which groups of members are to be balloted, and the questions the union will ask them, including details of the proposed industrial action (see left for an example of Protected Action Ballot questions).
  • If the Fair Work Commission decides the union has met all the legislative requirements, it will issue a Protected Action Ballot Order.
  • Next, the Australian Electoral Commission (or another ballot agent) conducts a Protected Action Ballot and declares the result.
  • Protected action is only declared if 50 percent of the members involved vote, and more than 50 percent of those who vote approve of the industrial action. (Members can support one form of action while rejecting another form of action if they wish.)
  • Protected action must usually commence within 30 days of the ballot results being declared.