ACTU submission on the FWA Review
Section only on the Restrictions on taking protected industrial action – one key reform for the Gillard government and Minister Bill Shorten
“The UN and ILO recognise the freedom to strike as a fundamental human right. It is particularly
important in the context of collective bargaining.
However, Australia continues to unduly restrict the right of employees to take industrial action in support of bargaining claims.
First, as discussed above, certain work-related claims are prohibited by the law.
Second, the law prohibits industrial action in support of ‘pattern’ claims, even though a key aspiration of workers and unions, in the interests of fairness, is to secure equal pay for equal work within a single industry or
Third, while unions generally support the concept that industrial action should only be taken if a majority of affected union members support it, the law continues to allow employers to interfere in the ballot of members, despite this being a matter between the union and its members.
Fourth, the detailed and bureaucratic procedures around the conduct of the ballot operate in practice to frustrate the speedy taking of protected action (and are exploited by employers for this reason).
Fifth, the imposition of a quorum for voting (when no such quorum applies when employees approve the making of an enterprise agreement) is also used to frustrate the taking of industrial action, especially in businesses with employees working at remote sites, or who do not speak English well.
Finally, and importantly, the Act continues the Work Choices era rules which permit protected
industrial action to be suspended or terminated almost at the election of the employer.
First, an employer can ask the Minister to terminate protected action; although this has never happened, it is too oppressive a power for the Minister to have in the first place.
Second, a large employer can take action to deliberately harm the economy, or endanger lives; FWA is then compelled to stop workers’
action. This was seen most recently in the Qantas dispute.
Finally, FWA must suspend protected action that is causing significant harm to the employer’s customers or suppliers; this provision can
almost always be invoked by large businesses.
These limitations on the right to strike in support of legitimate bargaining claims cannot be justified.
They contravene international law and ILO rules and violate the fundamental human rights of
workers to strike.
As such, they are inconsistent with section 3(a) of the Act, which expresses an
intention to comply with international law.
They should be significantly modified or removed.”