Driving industrial action down

WorkChoices, one year on, has had a significant influence on industrial actions, but employers still have to have a clear idea of their obligations. By PETER VITALE of VECCI.

By Peter Vitale

One year after it commenced on March 27, 2006, the WorkChoices legislation would certainly appear to have made its mark in reducing the amount of industrial action taken by unions.

Recent data released by the Australian Bureau of Statistics suggests that in the 12 months to December 2006, a combined total of 132,600 working days were lost due to industrial action. For the same period in 2005, before WorkChoices was introduced, 228,300 working days were lost.

Most commentators seem to agree that the requirements for secret ballots to occur before industrial action takes place, and other restrictions imposed under the new legislation, have been the cause of this reduction, although the figures reflect a continuing trend from the early 1990s.

A survey conducted by industrial relations publication Workplace Express identified that only 14% of 102 ballots ordered by the Australian Industrial Relations Commission to the end of January 2007 were in businesses with more than 100 employees.

The survey showed that 40% of ballots involved the Australian Manufacturing Workers’ Union (AMWU). This illustrates that small and medium businesses, particularly those with a significant union presence, need to understand how the new system has been operating in practice and what their rights and obligations are during a round of enterprise bargaining.

One of the significant changes brought about by WorkChoices was to tighten the circumstances in which a union could take “protected” industrial action. Employers have only very limited remedies against protected industrial action, and significant remedies such as injunctions against a union and its members are not available.

A key aspect of the new laws is that unions must obtain approval by its members employed by an employer for industrial action to take place. That approval must be determined by secret ballot.

A secret ballot cannot be held unless the union applies for and obtains an order for a secret ballot from the Australian Industrial Relations Commission. In many cases so far, the Australian Electoral Commission has been appointed to conduct the ballot, though there is increasing use of other independent parties, such as former members of the AIRC.

The union must meet 20% of the cost of conducting the ballot, with 80% being funded by the Federal Government.

In order to get timely advice that may help avert industrial action, it’s important for employers engaged in enterprise bargaining rounds to understand the grounds on which a union application for a ballot might be rejected by the AIRC. A ballot order will not be granted if the union is not genuinely trying to reach agreement with the employer. “Pattern” bargaining is also a no-go zone.

The decisions made by the AIRC so far indicate that unions may need to modify their traditional approach to bargaining.

In one case, the AIRC said that by maintaining a “fanciful” claim for a 10% a year wage rise, the AMWU and the Communications Electrical Plumbing Union were not genuinely trying to reach agreement.

In a limited number of cases the AIRC has granted ballot orders even though the union had been seeking an agreement that included content prohibited by the Workplace Relations Act. This was so, despite the fact that industrial action in support of such an agreement could expose the union to significant penalties and damages. Other decisions on this point suggest that a ballot won’t be ordered if the union is seeking to include prohibited content.

The range of decisions considering a number of other technical issues also suggests that there is still a lot of scope for litigation in this area.

The lesson for employers?

Small employers are more likely to be the target of a ballot for industrial action. Keep careful track of what is said and done during enterprise bargaining negotiations. The Workplace Relations Act now provides plenty of reasons for the AIRC to refuse to allow a union to take protected industrial action.

Peter Vitale is a solicitor, the General Manager of Workplace Relations Services at VECCI and a principal at CCI Victoria Legal.