There’s a reason some sectors of the IEU’s membership can take protected industrial action while others are restricted. Senior Industrial Officer Michael Wright explains why.
During the IEU’s negotiations for new multi-enterprise agreements (MEAs) covering members in independent schools, several members asked about the prospect of a strike or stop-work.
Protected industrial action is a feature of the Fair Work Act. It enables workers to take industrial action, including going on strike, without being threatened with legal sanctions by the employer or the government.
However, there is a crucial legal technicality based on the kind of enterprise agreement that covers employees in your workplace.
Types of enterprise agreements
There are two types of agreements: single-enterprise agreements and multi-enterprise agreements.
In a multi-enterprise agreement, more than one employer is involved in the agreement-making process. Those employers must be unrelated and not be involved in a common enterprise or joint venture.
In making a single-enterprise agreement, only one employer is involved. Members in the almost 600 Catholic systemic schools in NSW and the ACT are covered by a single-enterprise agreement because all 11 Catholic dioceses are engaged in a common enterprise and for bargaining purposes are considered a single employer.
There is also a handful of Catholic independent schools that are covered by multi-enterprise agreements.
What the law says
Under the Fair Work Act, unions and their members can only access protected industrial action if they meet certain requirements.
However, Section 413 subsection (2) of the Act states: “The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement” [our italics]
This one sentence in the Act denies employees who are subject to multi-enterprise agreements the right to take protected industrial action. We know many members would like the same right to stop work as their colleagues in Catholic systemic schools. You’re not the only ones.
What the ILO says
The International Labour Organization (ILO), a United Nations agency that aims to advance social and economic justice through setting international labour standards, agrees that this provision in the Fair Work Act is odious.
In 2009, an Australian union complained to the ILO that the above provision in the Fair Work Act breached the ILO’s Convention 98 on the Right to Organise and Collective Bargaining.
The ILO was critical of the limitations imposed by the Fair Work Act, stating:
“According to the principle of free and voluntary collective bargaining … the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case law of the administrative labour authority. Furthermore, workers and their organizations should be able to call for industrial action (strikes) in support of multi-employer contracts (collective agreements).”
It went on to say:
“The Committee considers that by excluding sympathy strikes, secondary boycotts and industrial action in support of multiple-enterprise agreements from the scope of protected industrial action, [the provision in the Fair Work Act] could … unduly restrict the right to strike.
“Taking into account its conclusions on such matters reached in previous cases concerning Australia, it requests the government to review these sections, in full consultation with the social partners concerned.”
Time for change
This consultation with “social partners”, which includes unions, over amending the Fair Work Act is long overdue. There are signs that the newly elected Federal Labor Government may listen to the ILO and expand the right to strike without the threat of fines for all employees.