The Law Handbook 2024

Chapter 11.5: Employment contracts, awards and agreements 1061 Enterprise agreements continue to operate after their expiry date until they are terminated or replaced. Agreements made before 1 January 2010 will automatically terminate on 7 December 2023 unless an application is made to the FWC to extend the default period for the agreement. Industrial action Note that an extensive discussion of the law of industrial action is beyond the scope of this chapter. What is industrial action? Industrial action is dealt with by the FW Act (ch 3 pt 3–3). ‘Industrial action’ is a broad term covering a range of activities engaged in by the parties to an industrial dispute. Most frequently, the term is used to describe the actions of employees and their unions to disrupt work. Employee industrial action may take the form of strikes, a refusal to work as directed by the employer, the imposition of a ban on certain activities, or some other limitation or restriction on work performed. On the employer side, industrial action usually takes the form of what is known as a ‘lockout’, which is action that prevents (or locks out) the employees from performing their work and receiving their usual remuneration. Protected industrial action The FW Act prescribes requirements for industrial action to be protected industrial action. The FWAct’s requirements include the holding of a protected action ballot (effectively a vote) to determine whether employees wish to engage in particular protected industrial action for a proposed enterprise agreement. No action can be taken against a party taking protected industrial action unless the action involves personal injury, wilful and reckless damage to property, or the unlawful taking, keeping or use of property (s 415 FW Act). In certain circumstances, the FWC can suspend or terminate protected industrial action. An application to terminate industrial action can be made on several grounds, including that the industrial action is causing significant economic harm to a third party (s 426 FW Act) or is causing significant damage to the Australian economy (s 424(1)(d) FW Act). Unlawful industrial action Industrial action that does not meet the require­ ments of Part 3–3 of the FW Act is not protected and is unlawful. In those circumstances, the FWC has the power to order that industrial action ceases (s 418). Also, those who participate in such action may be subject to civil liability, including damages and injunctions. Industrial action and enterprise agreements Since 1993, the law has permitted and accepted that coercion in the form of lawful industrial action may occur when enterprise agreements are being negotiated. To that end, industrial action by employers, employees and unions is permitted and protected by the FW Act if the action is applied towards the making and supporting of claims for a new enterprise agreement. Therefore, it is not unlawful to engage in protected industrial action. However, industrial action will only be protected if the procedures for protected industrial action in the FW Act are complied with (see ch 3 pt 3–3 FW Act). Individual agreements Introduction An individual agreement usually takes the form of a common law contract of employment. An individual employee negotiating an individual agreement is often at a disadvantage. Typically, employees have less bargaining power than employers. They usually have fewer resources, including limited knowledge of what they may be entitled to under other industrial instruments (e.g. awards or enterprise agreements) or prevailing conditions with other employers. The following is a list of possible items for inclusion in negotiations for individual agreements. 1 Award or NES conditions An employee should not agree to a term in an individual agreement that excludes or modifies NES or award conditions without first obtaining legal advice (see ‘National Employment Standards’). A term contained in a common law employment contract that purports to exclude or remove NES