EMPLOYMENT DISPUTES:
ISSUES AND TRENDS
The Honourable Les Kaufman
Senior Deputy President, Fair Work Australia
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?
2
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
3
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
4
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.
© Commonwealth of Australia — Fair Work Australia
5
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)).
6
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))
7
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)
8
Case Studies
9
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
10
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
11
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
12
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
13
The Schweppes Dispute
14
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
15
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.
16
Do Two Swallows a Summer Make?
• Qantas was unique
• The Waterfront?
• A Repeat of Schweppes?
– A risky proposition
– A fairly high bar
– Difficult for an employer to prove
– Suspension a possibility
• Has a Trend Been Set?
17