PROTECTED INDUSTRIAL ACTION - Faqs

PROTECTED INDUSTRIAL ACTION - FAQs

GENERAL

What is industrial action?

Types of industrial action include strikes, bans and stop work meetings.

A strike is a collective withdrawal of labour during which employees refuse to perform all work.

Work bans include refusals by staff to perform part of their duties and are a form of industrial action under the Fair Work Act 2009.

Employees who are members of a relevant union can take protected industrial action following a confidential ballot which has been approved by the Fair Work Commission.

See the Fair Work Commission Website.

What is Protected Action?

Employees who are represented by a bargaining agent such as members of a relevant union can take protected industrial action following a confidential ballot which has been approved by the Fair Work Commission.

See the Fair Work Commission Website.

What is unprotected Action?

Unprotected action is industrial action which is not lawful; that is, it has not been approved by the Fair Work Commission.

Employees who take unprotected industrial action will be docked a minimum of four hours pay or a full day’s pay if the action is longer than four hours.

See the Fair Work Commission Website.

What is a work ban?

Work bans include refusals by staff to perform all or part of particular duties and are a form of industrial action under the Fair Work Act 2009.

Do NTEU members have to participate in industrial action?

NTEU members do not have to participate in the industrial action if they choose not to. It is unlawful for anyone (including managers, members of staff or union representatives) to take adverse action against an NTEU member who chooses not to participate in protected industrial action.

EMPLOYEE

What happens if I participate in industrial action?

Legislation requires that the University dock your pay if you participate in industrial action. Prior to taking protected industrial action, the University will advise whether it will be enforcing a notice of non-payment (for the remainder of the day from commencement of the action) or a notice of reduction in payment for the duration of the action.

What happens if I take sick leave or recreational leave when there’s industrial action on?

Supervisors have a responsibility during periods of industrial action to ensure that the University’s operational requirements continue to be met and that staff who are not participating in industrial action attend work.

If a leave arrangement is made and approved correctly and well in advance of the industrial action, the arrangement should not be cancelled. Prior arrangements to take flexi time or some form of time in lieu may need to be cancelled. If the supervisor does not wish to cancel such an arrangement they should satisfy themselves that the arrangement was made well in advance of the industrial action, will not impede operational requirements being met, and is in accordance with University policies.

In other cases, supervisors should not approve any form of absence from work, including work from home arrangements, leave applications, time in lieu arrangements, rostered days off and other short term leave, unless the supervisor is satisfied of the following:

operational requirements will be met;
the proposed arrangement is not designed to avoid obligations to attend for work during periods of industrial action; and
Contact Employee Relations Officers for advice.

I’m not in the Union. Can I participate in protected industrial action?

If you do take industrial action and you are not a member of the relevant Union, then it is “unprotected action”, and is not approved by the Fair Work Commission.

Employees who take unprotected industrial action can be docked a minimum of four hours pay or a full day’s pay if the action is longer than four hours.

See the Fair Work Commission Website.

Why do I need to advise the University that I’m taking protected industrial action?

The Fair Work Act 2009 provides that it is unlawful to pay employees and unlawful for employees to accept payment during periods they are taking industrial action, other than in cases of protected action in the form of partial work bans (s. 470(1))

Who is allowed to be involved in protected industrial action?

Employees who are members of a relevant union can take protected industrial action following a confidential ballot which has been approved by the Fair Work Commission.

See the Fair Work Commission Website.

Will participation in industrial action affect my job or career at UWA?

No. It is unlawful to dismiss or discriminate against you for taking part in protected industrial action.

IfI take protected industrial action,will I still get paid?

If you engagein protected industrialaction intheformofstrikes(orstoppages),the FairWork Act2009prohibits UWA from paying you.Furthermore, youare prohibited from accepting sucha payment or asking UWA to make sucha payment.Fines may be imposedonbothUWA andemployeeswhobreachthe Fair Work Act2009.

If you engagein industrial action in theform of workbans, theFair WorkAct 2009 provides that UWA may either:

Acceptpart-performanceofyourdutiesand continue to pay you in full;
Provide youwitha notice informing you that no payment will be made to you duringthepartialworkbans andthatUWA willnot accept anywork from you until you resume your normal duties; or
Provide youwitha notice informing you that your paywill be reduced by an amountproportionate to the amount ofwork not performed for theduration of the ban.

What are my responsibilities during periods of protected industrial Action?

The Industrial Action Guidelines sets out the responsibilities of all staff. However in particular, it is important to note that:

Staff intending to take protected industrial action should seek clarification (or verify for themselves) that they are entitled to take industrial action that is protected;
Staff members who do not take protected industrial action or are not entitled to take protected industrial action are expected to attend work to carry out their normal scheduled duties unless instructions to the contrary are issued by the University; and
Staff must not take adverse action against a person who organises or engages in protected industrial action.

What is adverse action?

The Fair Work Act specifies that employers cannot take adverse action against an employee who is exercising a workplace right, which includes taking protected industrial action.

Adverse action includes:

injuring the employee in his or her employment,
altering the position of the employee,
discriminating between the employee and other employees,
or bullying and/or harassing an employee

Why the University must not take adverse action.

Protected industrial action is lawful, all NTEU members have a right to take (or not to take) this action.

Managers and supervisors must ensure that all staff who participate in protected industrial action are not treated differently from other staff. They are to be treated with respect and nothing must be done to harm them or their employment or discriminate against them prior and subsequent to the taking of action.

Where an employee makes a claim of adverse action as a result of a workplace right, the employer is subject to a reverse onus of proof, in that the employer must provide that any action taken was not taken because of or for reasons that include the workplace right.

Do I have to tell managers if I am taking protected Industrial Action?

Managersmaymakeenquirieswithyouaboutwhetheryouintendtotakeprotectedindustrial action.This willassistmanagersandtheUniversity to plan so asto maintain service continuity.However, you are free toansweror notanswer this question.

Onceindustrialactionhasbeentaken(e.g.strikeaction)orifindustrialactionhascommenced andiscontinuing(e.g.workbans),your manager needs to know whether you have taken, or are continuing to take, industrial action. You must complete the Protected Industrial Action Advice Form to ensure that you do not breach the Fair Work Act 2009 (i.e. by accepting payment during periods of stoppage action) and so the University can ensure that it complies with its obligations under the Act.

SUPERVISORS/MANAGER

What actions do I need to take if my staff are taking industrial action

Please consult the Guidelines for staff and management, or your local Employee Relations Officer.

Staff may be directed to undertake the duties normally performed by those who are taking industrial action, in accordance with usual relief arrangements.

What happens if an employee takes sick leave or recreational leave when there’s industrial action on?

operational requirements will be met;
the proposed arrangement is not designed to avoid obligations to attend for work during periods of industrial action; and
Contact Employee Relations Officers for advice.

What do I do if I am aware an employee is participating in industrial action, but does not fill in the form to notify the University?

The Fair Work Act s473 provides that an employee must not accept or seek payment relating to periods of industrial action.

You can advise the employee that all staff who participate in industrial action by stopping work are required to complete this form and return it to their supervisor for endorsement. Completed forms should be scanned and emailed to: within 48 hours of participating in industrial action.

Contact your Employee Relations Officers for advice:

Do NTEU members have to participate in industrial action?

What is adverse Action?

The Fair Work Act specifies that employers cannot take adverse action against an employee who is exercising a workplace right, which includes taking protected industrial action.

Adverse action includes:

•injuring the employee in his or her employment,

•altering the position of the employee,

•discriminating between the employee and other employees, or

•bullying and/or harassing an employee

Why can’t the University take adverse action?

Protected industrial action is lawful, all NTEU members have a right to take (or not to take) this action.

Managers and supervisors must ensure that all staff who take part in protected industrial action are not treated differently from other staff. They are to be treated with respect and nothing must be done to harm them or their employment or discriminate against them prior and subsequent to the taking of action.

Do the staff I supervise need to tell me if they are participating in protected industrial action?

To comply with the Fair Work Act 2009 staff participating in protected industrial action must notify the University of their participation through the ‘Advice Form provided’. The form must be countersigned by the supervisor.

Who is allowed to be involved in protected industrial action?

Employees who are members of a relevant union can take protected industrial action following a confidential ballot which has been approved by the Fair Work Commission.

See the Fair Work Commission Website.

Will participation in industrial action affect an employee’s job or career at UWA?

No. It is unlawful to dismiss or discriminate against you for taking part in protected industrial action.

What are my responsibilities during periods of protected industrial Action?

The Industrial Action Guidelines sets out the responsibilities of all staff. However in particular, it is important to note that:

Staff intending to take protected industrial action should seek clarification (or verify for themselves) that they are entitled to take industrial action that is protected;
Staff members who do not take protected industrial action or are not entitled to take protected industrial action are expected to attend work to carry out their normal scheduled duties unless instructions to the contrary are issued by the University; and
Staff must not take adverse action against a person who organises or engages in protected industrial action.

How can managers and the University respond to staff taking industrial action?

In response to protected industrial action, the University may:

accept the protected industrial action without opposition (subject to obligations under the Fair Work Act 2009);
make certain pay deductions occur during stoppages;
make proportionate pay deductions (where partial work bans are occurring); and/or
not accept part-performance of work and accordingly not pay staff for the duration of the action.

The University will communicate with you about any responses to protected industrial action that are to be taken.

Ifan employee takes protected industrial action,will they still get paid?

If an employee engagein protected industrialaction intheformofstrikes(orstoppages),the FairWork Act2009prohibits UWA from paying them.Furthermore, employees are prohibited from accepting sucha payment or asking UWA to make sucha payment.Fines may be imposedonbothUWA andemployeeswhobreachthe Fair Work Act2009.

If an employee engagesin industrial action in theform of workbans, theFair WorkAct 2009 provides that UWA may either:

Acceptpart-performanceofdutiesand continue to pay in full;
Provide the employee witha notice informing that no payment will be madeto them duringthepartialworkbans andthatUWA willnot accept anywork from them untilnormal duties resume; or
Provide employees witha notice informing that their paywill be reduced by an amountproportionate to the amount ofwork not performed for theduration of the ban.

Do employees have to tell managers if I am taking protected Industrial Action?

Managersmaymakeenquirieswithemployeesaboutwhethertheyintendtotakeprotectedindustrial action.This willassistmanagersandtheUniversity to plan so asto maintain service continuity.However, employees are free toansweror notanswer this question.

Onceindustrialactionhasbeentaken(e.g.strikeaction)orifindustrialactionhascommenced andiscontinuing(e.g.workbans),managers need to know whether employees have taken, or are continuing to take, industrial action. Employees must complete the Protected Industrial Action Advice Form to ensure that they do not breach the Fair Work Act 2009 (i.e. by accepting payment during periods of stoppage action) and so the University can ensure that it complies with its obligations under the Act.

The Protected Industrial Action Advice Form can be found on the Enterprise Bargaining website.

What are my responsibilities during period of industrial action?

Managers, who are not participating in industrial action, have a responsibility where possible, to ensure that the University’s operational requirements continue to be met and that staff who are not participating in industrial action attend

work.

The objective is to minimise any disruption to the normal work of the University which includes:

Advising employees of their rights and responsibilities (see guidelines and other material on Enterprise Bargaining website)

Advising students and teachers of any alternative arrangements required during period of industrial action.

Dealing with staff in a courteous and reasonable manner without any perception of intimidation or victimisation.

How will I know if one of my staff members is engaged in protected industrial action?

Once the University is notified of the intent to engage in protected industrial action by the NTEU, you can ask your staff members if it is their intention to participate (whether in whole or in part). This is to ensure that participating staff members are not paid for time when they are taking action. Employee Relations staff can provide advice and support. A Employee Participation in Industrial Action form is provided on the Enterprise Bargaining website which will enable managers and supervisors to keep appropriate records.

When should I ask my staff members if they are engaged in protected industrial action?

Once the NTEU has notified the University of its intent to engage in protected industrial action, you may ask your staff members if they intend to take protected industrial action as notified. You should also confirm during the specified time if a staff member is participating to ensure that non-payment of wages occurs as appropriate.

How should I manage the work load if my staff members have indicated they intend to take protected industrial action?

Contingency plans should be formulated as needed and implemented prior to protected industrial action during the three day notice period. The University is entitled to take appropriate mitigating steps to ensure that essential activities continue to be performed. Note that successful mitigating actions do not invalidate industrial action.

What happens if an employee can’t be accounted for on a day of action?

The Head of Department or supervisor must, at the earliest possible time, make contact with the staff member to determine the nature of the absence and record the given reason. If a staff member cannot be located and is not on approved leave, it should not be assumed that they are taking protected action.

How can I ensure that essential operations are performed (e.g. transmission of student results)?