The ACTU has called on workers to attend a rally in Sydney. We understand our obligation with regard to not paying strike pay but how do we manage our obligations if employeessubmit an annual leave application for the day of the rally? Or what do we do if someone calls in sick?
The Australian Council of Trade Unions’ (ACTU’s) “Change the Rules” campaign is aimed at convincing the Labor Party to change the Fair Work Act 2009 (FW Act) if elected to give unions more power and impose major restrictions on employers.
As part of its campaign, the ACTU has announced a series of protest rallies, including:
The Fair Work Ombudsman’s (FWO’s) notice, warns employees of the consequences of taking unprotected industrial action and advises employers that it is unlawful to pay employees who take such action.
‘Industrial action’ is defined in the FW Act to include a ‘failure or refusal by employees to attend for work or perform any work.’ Protected industrial action can only occur during negotiations for a proposed enterprise agreement and the action is supported by a protected action ballot order.
If industrial action is not protected, the Fair Work Commission (FWC) can make orders to stop the unprotected industrial action whilst it is occurring, or to prevent the unprotected industrial action from happening when it is threatened, impending, probable or being organised.
The FWO has issued a letter reminding employers that they have the option to apply to the FWC for a stop order.
Employees attending the rally without their employers’ agreement would in most circumstances be engaging in unlawful industrial action. Some employers may receive requests for paid leave or hear that employees are seeking to attend the rallies.
Under the FW Act an employer must not pay employees for taking unprotected industrial action. It is a contravention for both the employer to pay the employee and the employee (or union) to ask for or accept payment for such periods. Penalties of up to $12,600 for an individual and $63,000 for a corporation may apply.
If the period of unprotected industrial action is at least four hours, no payment for the total duration of industrial action will be made. If the unprotection industrial action is less than four hours, the employer must deduct four hours of wages from the employee.
Some employees may not want to attend the rally. A person is under no obligation to take part, or not take part, in any form of industrial action unless they wish to do so. The organisation should encourage employees to report to management if they feel that they are being bullied, harassed or coerced by other employees for any reason.
The employer will need to investigate these claims and take disciplinary action if appropriate.
If employees wish to participate in the rally, they could apply and take annual leave for that period. The employer cannot unreasonably refuse a request for annual leave however, if multiple employees want to take annual leave on that day, the employer may be able to refuse on reasonable business grounds.
If an employee calls in sick on the day of the rally and wants to use their personal/carer’s leave entitlements, the employer can require the employee to comply with the notice and evidence requirements under the FW Act and relevant company policies. The employee may be subject to disciplinary action for non-compliance.
Where an employee originally applied for annual leave which was refused and calls in sick on the day of the rally, they can be directed to comply with the evidence requirements. The employee may be subject to disciplinary action if the employer receives evidence that the employee attended the rally when they said that they were sick.
If the organisation operates under a rostered day off (RDO) system, the employer could consider scheduling an RDO on the day of the rally.
The stand down provisions of the FW Act allow employers to lawfully stand down employees without pay if they cannot be usefully employed for reasons beyond the employer’s control, including in circumstances where other employees take industrial action
The Building Code contains additional requirements relating to unlawful industrial action. Organisations bound by the Code must advise the Australian Building and Construction Commission (ABCC) of any actual or threatened industrial action within 24 hours after becoming aware of the threat or action.
For more information or assistance, please contact the Ai Group Workplace Advice Line on 1300 55 66 77.
Should you require detailed advice relating to unions, unlawful industrial action, the powers of the FWC and related matters, our team of professional Workplace Relations Advisers and lawyers atAi Group Workplace Lawyers are available to assist you.
