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THE Fair Work Ombudsman (FWO) has requested the assistance of AMMA and its members regarding any potential contraventions of the Fair Work Act (FW Act) ahead of the Australian Council of Trade Unions (ACTU) threatened series of national “Change the Rules” rallies.

With 21 stoppages listed across Australia, the potential impact of the rallies is significant.

AMMA is assured that the workplace regulator will monitor and investigate potential non-compliance with the FW Act, including alleged unprotected industrial action resulting from employees leaving work or failing to go to work to attend the rallies.

“Organised rallies have the potential to create a situation where conduct may be engaged in that contravenes the FW Act, for example, if an employee withdraws his or her labour or fails to attend work to go to the rally,” the Deputy FWO said in correspondence to AMMA.

“Where a worker is covered by an enterprise agreement that has not yet passed its nominal expiry date, withdrawing their labour or failing to attend for work may contravene section 417(1) of the FW Act.”

Ahead of the first union rally, listed for Perth this Thursday (18 October), AMMA is reminding employers of their rights and obligations under the FW Act in respect to industrial action.

In particular, AMMA members should note that pursuant to sections 470 and 474 of the FW Act, an employee cannot be paid for the time in which they have engaged in industrial action whether protected or unprotected.

Section 470(2)-(3) of the FW Act contains further information in respect of partial work bans and sections 470(4)-5) and 474(4) in respect of overtime bans. For unlawful stoppages, an employer must deduct wages equivalent to four hours work, or for the total duration of the industrial action taken, whichever is the greater.

Any requests to take leave should be assessed consistent with organisational policies, procedures and the FW Act including appropriate consideration of operational requirements.

The FWO has further advised its investigations would be assisted if employers:

1. are clear in their directions to employees that they have or do not have authorisation to leave or not attend the workplace;
2. make and keep records of those directions;
3. record the circumstances of individual employees not adhering to any direction given that they do not have permission to leave or not attend the workplace;
4. record the deductions from wages which they have subsequently made; and
5. make records of any contact from third parties regarding their involvement in organising unprotected industrial action.

The regulators could go further: AMMA

The FWO’s correspondence coincided with a letter from AMMA to both the FWO and the Australian Building and Construction Commission (ABCC), urging the regulators to go further in preparing for and responding to any unlawful industrial action organised and/or taken as a result of the ACTU rallies.

Highlighting that resources and energy supply chains are often disproportionately exposed to the impacts of unlawful industrial action, Mr Knott proposed four proactive measures that the FWO and ABCC could undertake prior to the rallies commencing:

1. Publication of a checklist for distribution to employees, explaining the circumstances in which joining a political demonstration would constitute unlawful industrial action and may see employees individually liable for their actions including detailing fines that may apply;
2. Information for distribution to employees, educating them on their rights and obligations, and the fines and penalties they potentially face for engaging in unlawful industrial action;
3. Additional public information detailing the true impacts of unlawful work stoppages on individual businesses, the economy and the Australian community (such as damaging economic growth and productivity, and the impact this has on wages growth); and
4. Correspondence to the ACTU, and its affiliates and non-affiliated organisations, reminding them of their obligations and responsibilities under Australia’s workplace laws and the penalties they may face for organising unlawful industrial action.

“Employers in the resources and energy industry have grown increasingly concerned about the rising nonchalance of the ACTU, bordering on contempt for the Australian community and economy, in encouraging employees across Australia to stop work to join its rallies,” Mr Knott told the FWO and ABCC.

“Just months ago, the Melbourne CBD was brought to a standstill with thousands of workers from the port and construction sites (among other workplaces) walking off the job to attend an ACTU rally – met by little (if any) response from the then-FWO and the ABCC.

“As the two regulators charged with upholding the rule of Australia’s workplace laws, AMMA is of the firm view that the FWO and ABCC should enforce compliance, equally to employers, employees and other users of the workplace relations system including registered organisations.

“Anything less than actively discouraging unprotected industrial action, followed by pursuing and prosecuting those illegally engaging in the ACTU’s so-called ‘mega rallies’ would be a failure of the FWO and ABCC in exercising their duties to promote legal compliance, uphold workplace laws and protect the community.”

For more information about what steps you can take to protect your business from the impact of any unlawful work stoppages or AMMA’s correspondence with the FWO and ABCC regarding upcoming ACTU rallies, contact [email protected].

AMMA’s national team of expert workplace relations consultants are available to assist members in preparing for and dealing with any unlawful work stoppages arising from the ACTU rallies or any other matter.

Support includes employee communications, training for line managers in proactively addressing these issues with your workforces, applying for FWC action to get people back to work, and appropriate payment deductions and deduction notices.

For information on how we can support you, contact your local AMMA office.