As members may be aware, a rally is scheduled to take place on Tuesday 23 October 2018 in Melbourne as part of the Australian Council of Trade Unions (ACTU) ‘Change the Rules’ campaign. The rally is scheduled to take place from 10:30am – 12:30pm and is expected to follow a route from Trades Hall in Carlton down Swanston Street to Federation Square.
Employers will need to be aware of their obligations under the Fair Work Act 2009 (Cth) (Fair Work Act), in respect of the potential participation of their employees during this time. Any employees participating in this rally during rostered working time, may be taking illegal strike action, or engaging in ‘unprotected’ industrial action.
Broadly, if an employee fails to attend the workplace or stops work without authorisation from their employer, this is likely to be unprotected industrial action in contravention of the Fair Work Act. There are provisions under the Fair Work Act that allow an employer affected by the industrial action to apply to Fair Work seeking an order to stop or prevent unauthorised industrial action.
If an employee has engaged in unprotected industrial action, the employer is required, under the Fair Work Act, to deduct a minimum of four hours wages from the employee, even if the industrial action was less than four hours.
It is prohibited for an employee to ask for or accept payment, or for an employer to make payment for the total duration of the unprotected action (or for the four-hour minimum, whichever is the greater). In situations where an employer is prohibited from making payment, penalties of up to $63,000 for a corporation may apply.
Further, the Fair Work Ombudsman (FWO) has advised that as a part of their functions under the Fair Work Act, the FWO will “monitor and investigate potential noncompliance with Commonwealth workplace laws, including allegations of people engaging in or organising unprotected industrial action.”
The FWO has advised employer associations that it will assist the FWO’s investigations if employers:
The Fair Work Act also prohibits adverse actions against a person because of legal industrial activity. This includes protections on actions against an employer withholding the payments to employees engaging in the industrial action.
We encourage members to contact the Workplace Relations Advice Line on 8662 5222 to discuss this or any other workplace relations matter.
All media enquiries may be directed to the Media and Communications Manager.
For all other enquiries, please contact the Victorian Chamber on (03) 8662 5333.