Australia fair work act Essay Example

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Fair Act 2009 8

Australia fair work act 2009

Australia fair work act 2009

Part 3-3 of the Australian fair work act 2009 is the industrial action which explains systems which guide the employers and the employees on the actions concerning their employment contract (Attorney General 2009). An employee under this section means the person who is given a job while an employer is the person giving a job to the employee.

Protection of the industrial actions

Under this division, we have the following industrial protections. Section 408 shows the protected industrial action. A protected industrial action is an action when there is an agreement with the firm. A protected firm should have any of the following; there should a claim from an employee, if there is a response from one of the employees and if there is an action from the employer

Action claim for an employee

Any claim made by an employee would be an industrial action which is only meant to the matters of the agreement between the employer and the employee (Herbert et al 2010). This claim should be made in such a way that it supports the agreement. The claim should be against the employer and must cover the employee who is a party to the agreement and an employee who is under the groups covered the ballot orders which are responsible for industrial actions.

Another employee claim action is the ballot protection. The claim should be approved by the ballot that is protected. The claim must not be unlawful or the unlawful agreement terms in the contract (Creighton & Antony 2012). This means that the industrial action should not support the unlawful claims which might be on the terms of the agreement. The next claim action is that the claim should not be used to bargain for the terms and conditions of the contract which are not set out in the agreement. The claim action of the employee should not lead to significant dispute between the employee and the employer. The claim notice should give a notice as stated in section 430 of this fair work act. Finally, if the action claim is made by an employee who is covered by the organization which is a bargaining representative then reference to an officer is done according to subparagraph (1) (b) (i) of this fair work act 2009 (Joellen & Peter, 2008).

Response actions by an employee

A response action from an employee can be an industrial action if it meets the following conditions; if the claim made is a reaction to the industrial action taken by an employer and if the claim is made against the employer as it is stated in the agreement by a bargaining representative of the employee who is covered by the agreement and who meets all the regulations as set out in section (Cameron 2012).

The industrial action must not lead to a demarcation dispute if the industrial action is being organized by a representative of the employee who is covered in the contract (Cameron 2012). Therefore it should be within the limits of being solved without leading to disputes.

Finally, if the representative of the employee action is the organization which bargains on behalf of the employees, then a reference is made to another representative of bargaining as it is stated in subparagraph (1) (b) (i) of this fair work act of 2009.

Response action of an employer

This is a reaction that is organized by an employee in relation to the agreement and the action which is covered by the agreement. This industrial action should be organized by an employer according to the agreement and it should meet all the requirements.

Bargaining pattern

A pattern for bargaining is valid if the person bargaining represents more than agreements from different claims, the bargaining claim is the same between the two claimers and the conduct should involve more than 2 employers (Creighton & Antony 2012). If the pattern of bargaining is trying to reach an agreement then that is not a pattern bargaining. For example, in the case of Mammoet Australia pty limited and Woodside pty limited agreement which involved transportation of materials to Pluto project. This agreement caused hindered train operations because of the lock outs and stoppages of work in North Western Australia. Woodside and Kentz considered this and applied to fair work Australia to suspend the industrial action because it was a threat to third parties. The FWA held that the industrial action between the two enterprises affected the third parties and therefore suspended the action for three months.

Industrial action common requirements

Industrial action should not relate to more than agreements of the enterprises (Colley 2012). The two parties are genuinely trying to reach an agreement if the person involved in the industrial action is a representative of the agreement and if the other party involved the employer who is covered in the agreement. The notice requirements set out in 414 should be met and the bargaining representative should be covered in the agreement (Zinn 2003). There should be no industrial action to be taken if the agreement of the organization has not been made and finally, there should be no operation of any suspended order.

Requirements of notice for an industrial action

Before an industrial action takes place, an employee should give a notice of a minimum of three working days (Harpur 2012). The employee claim notice should not be given if the results of the ballot are not yet out. Before any person tries to respond to the employee claims there must be a written action notice addressed to the employer. Before the employer responds to the employee claims there must a notice to the bargaining of the representatives and inform all employees who will be involved in the industrial action. Finally, the notice requirements should include all the contents of the action.

Employer response actions

The employer may refuse to pay during the days of action (Markey 2008). This is when the employer is responding to the industrial actions of the employees. The employer response should not influence the continuity of the employment terms.

Industrial action and expiry date

There should be no industrial action to be taken after the expiry date of the agreement (Graham 2012). The approval of the organization is due to the date of expiry after which there will be no agreement and therefore there will be no action taken. If there is a contradiction to the agreement by one of the parties under section (1), the court may give an injunction order or make any other judgment that may stop or lead to remedy effects of breaching the contract.

If an employee or employer engages in unprotected industrial action, the fair work act orders that the action should stop. When the FWA is taking an action it should not specifically consider the industrial action.

Interim orders

For an interim order to be made there must be an order made and it should be determined within two days which the application was made (Ingmar 2009). If the interim order cannot be made within two days then an application of stopping the industrial action is made. When making an industrial order the fair work act does not show the specific industrial action to be taken. The interim order can remain in place until when the real application is judged.

A person to whom the order is made is not supposed to contradict the order unless the order application made should be protected under the industrial action. The court may give an injunction order if the applicant of the order has applied for an injunction and that if the court is satisfied the other party to the agreement (Joellen & Peter, 2008).

Termination of an industrial action

The industrial action may be terminated in written request and as set out in the agreement between the parties. If the application made is of economic significance then the court may terminate it if the action will cause harm to either the employee or the employees or any other person covered by the agreement (Herbert et al 2010). The action will also be terminated if it threatens to cause harm to the other employees who are under the agreement. If the parties or the bargaining representatives fail to reach an agreement the action may bet terminated. If the industrial action has been in progress for a long period of time and that agreement will not be reached in the near future thus it will affect the operations of the enterprise (White 2012). The court may determine the action on their own or consider the application request of the bargaining representative or any other relevant party to the agreement to terminate the action.

The industrial court may also be terminated if the action is endangering life or is harmful to the health of a person (Loundes 2000). Industrial action that will damage the economy of Australia can be terminated. The termination order application must be determined within five days since application. If the court cannot terminate the action within the five days then it may issue an interim order of terminating the action which will remain in action until the action application is determined.

Suspension of the industrial action is also made if the action has side effects to the employees or the employer covered by the agreement (Mitchell 2011). This action is suspended so that the effects of the actions do not affect the operations of other employees. If the industrial action threatens to cause harm to third parties, the court may suspend or terminate the action in favor of the third parties. For instance, if the action interferes with the suppliers then the action may be terminated to safe the operations of the suppliers.

A good court decided example is the Schweppes Australia’s workers who went on strike because they wanted to enter into a new enterprise agreement in 2011. The bargaining representative of Schweppes was united voice. They were claiming to that the introduction of working shifts of twelve hours systems could lead to less time for working hours and therefore there could be no time working overtime for pay. United voice gave notice between 14th October and 12th December that the employees will engage in industrial action. On 15th Dec 2011, Schweppes gave notice of locking out the employees and on 19th December they applied for the termination of the contract because locking out could cause adverse effects to the economy. The application of terminating the contract was granted because the two parties were genuinely not able to agree for a long time.

Industrial action related payment

If an employer an employee is involved in the industrial action, the employer must not pay the employee for the period during the industrial action. However, these payments do not refer to partial work in section 471 of this fair work act 2009 (Crystal 2010). The partial work ban does not involve refusing to go to work or failing to attend work. The employer shall give payment reductions notice if the employee is involved in the industrial action and if the action is in the form of partial work ban. The deductions in the payment are done according to the industrial period time and it should be indicated in the notice given. The industrial action period starts the day when the employee started the work ban and ends the day when the employee stops the work ban (McDonald 2010). In case of unprotected industrial action by an employee in a day, the employer will not pay the employee if the total hours of the industrial action that day was more or equals to four hours.

Issues related to industrial action in Australia

Some of the industrial action related issues in Australia include inadequate follow up to ensure that the actions are well implemented. Another issue is that many enterprises are engaging in multi-practices by entering into agreement with many parties which make it hard to determine the course of action. Some industrial actions take too long to determine causing adverse effects to third parties and affect the economy adversely (Johnston 2012). There are many reported cases of industrial action among the organizations which makes it hard to determine them faster for instance determining the interim orders. Finally, many employees and employers do not enter into formal and legal agreements thus it becomes hard to determine the course of action when there is industrial action.

References

Attorney General 2009, Australian fair work act, Canberra.

Creighton, W. B & Anthony, F 2012, Rediscovering collective bargaining: Australia’s Fair

Work Act in international perspective, New York, NY: Routledge

Cameron, C 2012, Fair work act, Australian journal of labor law, Vol. 25, No. 3, pp. 43-64.

Colley, L 2012, Fair work act, Thomson Reuters, Australia.

Graham, A 2010, Australian master fair work guide, Thomson Reuters, Australia.

Herbert, S., Allen, R & Pearson, D 2010, Third party harm stops protected industrial

Action, viewed 14th may 2013 from http://www.lexology.com/library/detail.aspx?g=315ab552-bbfb-4bb0-a98f-10f2467c032c

Harpur, P 2012, Australia’s fair work act, Ngarak Press.

Ingmar, T 2009, The fair work act: Good faith bargaining and the role of fair work

Australia,
Thomson Reuters Australia.

Joellen, R & Peter, S 2008, Beyond workChoices: Remarking industrial Relations in Australia, The Economic and Labor Relations Review, Vol. 18, No. 2, pp. 1-6.

Johnston, M 2012, Industrial action, Australian Nursing journal, Vol. 19, No. 7, pp. 132-321.

Loundes, J 2000, Industrial relations practices, Industrial relations journal,

Vol. 26, No. 1, pp. 542-635.

Mitchell, R 2011, Labor laws in Australia, Zeus Publications.

McDonald, J 2010, Industrial work action, International journal for industrial organization,

Vol. 10, No. 3, pp. 611-632.

Markey, R 2008, Industrial action, Journal of Industrial relations, Vol. 50, No. 5, pp. 752-778.

White, C 2012, Removing the choice of strike, Journal of Australian political economy

Vol. 56, No. 3, pp. 283-299.

Zinn, C 2003, Australian doctors’ industrial action, British medical journal,

Vol. 327, No. 7417, pp. 234-632.