Defining Industrial Action

Abstract

Unions engaged in enterprise bargaining under the Fair Work Act 2009 (Cth) (‘FW Act’) frequently exhibit considerable creativity in the forms of industrial action they take in order to pressurise employers to make concessions in bargaining. Examples of such conduct can include sending emails with the Caps Lock function turned on, wearing union campaign clothing or insignia whilst at work, and communicating with clients and customers of the target employer about the employees’ industrial campaign. This creativity is pushing the definition of ‘industrial action’ in s 19 of the FW Act to its outer limits. This is important due to the fact that many aspects of the bargaining regime established under the FW Act turn upon whether particular conduct falls within the statutory definition. These include provisions concerning the lawfulness or otherwise of industrial action; access to orders to stop or prevent unprotected industrial action; payment of wages for periods when employees are engaging in industrial action; and employers’ capacity to stand down employees without pay where they cannot usefully be employed because of industrial action which does not involve the employer or its employees. This article traces the current definition back to its origins in the system of conciliation and arbitration that operated in Australia throughout most of the 20th century. That system treated all industrial action as unlawful at statute and/or common law. The definition has not been significantly changed since the replacement of that system by one based on enterprise based bargaining, accompanied by limited recognition of the capacity lawfully to take industrial action in the course of such bargaining. Reviewing the current definition and its practical operation in its social, historical, and international context, the article concludes that the definition is not ‘fit for purposé, and proposes that it should be revised in order better to accord with the purposes of the legislation and with the bargaining regime it establishes.