David Weiler, Associate
Recently it was reported that up to 500 journalists and other editorial staff walked off the job in response to an announcement by Fairfax Media that it intended on making cuts to the equivalent of 120 full-time staff. This dramatic display of industrial defiance is an example of where a breaking point has arisen between employees and management.
The actions taken by the Fairfax employees constituted unprotected industrial action under the Fair Work Act 2009 (Cth) (“FW Act”) as it was not undertaken as the result of a protected action ballot (nor could it have been as the relevant enterprise agreement had not yet expired). This type of behaviour can be extremely detrimental to businesses and employers should be aware of their rights in preventing such action, especially those in the public spotlight.
If an employer is of the opinion that unprotected industrial action is threatened, impending or probable it has the ability to apply to the Fair Work Commission to make an order to stop the industrial action (or proposed action). Therefore it is crucial that if an employer thinks action may be taken, it acts as swiftly as possible. A breach of an order to stop bargaining can carry a maximum penalty of $10,800 for individuals and $54,000 for bodies corporate.
However, although the Commission must (so far as practicable) determine such an application within two days after the application is made, this is not always enough time. In the case of the Fairfax employees, they were only given notice of the proposed redundancies on a Thursday morning and the first wave of 24-hour strikes began on Friday. This demonstrates the potential for disruption from unprotected industrial that employees can cause, often with little recourse. Importantly, employers are prevented under the FW Act from taking adverse action against an employee that takes part in industrial action, regardless of whether it is protected or not.
If employees do take unprotected industrial action, employers are obligated under the FW Act to not pay them for this period of time (and at least four hours of pay if the action lasts less than four hours).
The Fairfax dispute is a high profile example of how important it is for employers to manage industrial relations even when an enterprise agreement is on foot. We work with clients on how to effectively engage early, often and genuinely with both employees directly and their union representatives.