Bargaining F.A.Q

Protected Industrial Action - Members' Rights

• No Adverse Action for Taking Protected Industrial Action

The Fair Work Act recognises that taking protected industrial action is a workplace right.  An Employer cannot take adverse action against an employee for engaging in protected industrial action.  

• CPSU Gives Notice to the Employer of Intention to Take Action

The Fair Work Act requires CPSU to give your Employer three days written notice of the intention of members to take particular types of protected industrial action.  There is no requirement under the Fair Work Act for a particular employee to inform his/her manager or supervisor of his/her intention to engage in protected industrial action.

• Fair Work Act rules about Payment for Protected Industrial Action

The Fair Work Act contains rules about payments during the period in which an employee engages in protected industrial action.

• Payment for Complete Stoppage

If protected industrial action is taken which constitutes a failure/refusal to attend work or a failure/refusal to perform any work at all (Complete Stoppage), the Employer must not make any payment for the duration of that Complete Stoppage.

• Payment for Partial Work Bans or Limitations

A partial work ban is industrial action that is not: (a) a failure or refusal to attend for work; or (b) a failure or refusal to perform any work at all.  

• Partial Payment Notice

If you engage in a partial work ban, your Employer may issue you with a Partial Payment notice and if this occurs please contact CPSU immediately as a dispute in Fair Work Australia may arise over the amount proposed.

• Non-Payment Notice

If you engage in a partial work ban, your Employer may give you a Non-Payment notice and you can choose not to attend work or refuse to perform any duties, for the period that the Employer is refusing to pay you, as this counts as protected industrial action.  Contact CPSU immediately.

What is industrial action?

Industrial action may include such things as going on strike (ie: not attending or performing work), work bans (ie: not performing all normal duties) or a range of other possible actions.

What is protected industrial action?

"Protected Industrial Action" is a definition under Australian Law which defines what type of industrial action is lawful or legal to take.

In order for industrial action to be lawful in Australia, the following requirements must be met (as per Fair Work Australia Website) :
"

• an existing agreement has passed its nominal expiry date
• the industrial action is in support of a new enterprise agreement (or is in response to industrial action by the other side)
• the industrial action does not involve pattern bargaining
• in the case of employees initiating action in support of claims, Fair Work Australia has granted an order for a protected action ballot to be held and the ballot has endorsed action being taken
• the required notice has been given to the other party
• the bargaining representative(s) organising the action, or representing the employees who are taking or organising the action, must be genuinely trying to reach agreement.

Industrial action will not be protected if it:

• is taken while the bargaining period has been suspended
• relates significantly to a demarcation dispute
• is in support of claims for a multi-enterprise or greenfields agreement
• is in support of the inclusion of claims that cannot be lawfully included in an agreement (these are known as unlawful terms), or
• contravenes any orders made by Fair Work Australia."

How do we get the right to take industrial action in support of our agreement?

A ballot will be held of members. In order to have the right to take industrial action:

• 50%+1 of members who are eligible to vote must vote; and
• 50%+1 of those who have voted must have voted in favour of taking protected action.

Who can vote?

Members of CPSU are entitled to vote and will be sent a ballot paper by the Australian Electoral Commission (who are running the ballot). Members must be officially members of the union and have joined before or on the day the order is made (16th September 2011). Those who join the union after the date of the order but before the start of the ballot will not be eligible to vote in the ballot.

If I vote 'Yes' in the ballot, will I have to take Industrial Action?

The ballot ensures that if you choose to take any of the forms of Industrial Action listed it is legal to do so. Voting yes in the ballot does not mean you have to take action, it simply ensures that you are legally able to should action be required.

Does my union membership remain private?

The ballot is conducted by the AEC on behalf of the union and your membership information will not be given to your employer or any body other than the AEC. The AEC will only use your personal information in order to carry out the ballot.