Employer response action

See Fair Work Act s.411

Employer response action for a proposed enterprise agreement means industrial action that:

• is organised or engaged in as a response to industrial action by:
  • a bargaining representative of an employee who will be covered by the proposed enterprise agreement, or
  • an employee who will be covered by the proposed enterprise agreement; and
• is organised or engaged in by an employer that will be covered by the proposed enterprise agreement against one or more employees that will be covered by the proposed enterprise agreement.

Employer response action must be in response to industrial action, as defined, that is happening. Employer response action cannot, by definition, be in response to industrial action that is threatened, impending, probable or even imminent at the time that the employer's industrial action is implemented.[1]

As defined, the only form of employer response action is a lockout.[2]

An employer may also take other action, which is not 'employer response action', in response to employee claim action. This other action can include:

• standing-down employees in accordance with Part 3–5 of the Fair Work Act, or
• declining to pay employees for partial work bans in accordance with partial work bans under s.471(4).

In Australian and International Pilots Association v Fair Work Australia[4] the Full Court of the Federal Court considered whether there needed to be a link between employer response action and industrial action taken by employees. The Court found that the terms of the Fair Work Act limit an employer to some form of causally connected response to employee industrial action.

The words 'as a response' require only that the lockout be seen as causally connected to employees' industrial action. It does not have to be reasonable, proportionate or rational.[5]

Employer response action can be protected industrial action if it is engaged in in accordance with s.411 of the Fair Work Act in response to employee industrial action which is or is not protected action.[7]

If an employer engages in employer response action against employees, the employer may refuse to make payments to the employees in relation to the period of the action.[8]

Employers have various statutory and common law rights to respond to industrial action by employees and such responses will not constitute industrial action unless the employer’s action is a lockout. For example, in particular circumstances an employer may have the right to respond to industrial action by:

• standing-down employees in accordance with Part 3–5 of the Fair Work Act, or
• declining to pay employees for partial work bans in accordance with partial work bans under s.471(4).

Related information

• Payments relating to industrial action

Employer response action for a proposed enterprise agreement does not affect the continuity of employment of the employees who will be covered by the proposed enterprise agreement.[9]

The Fair Work Regulations set out purposes for which continuity of employment is not affected by an employer taking industrial action. These are:

• superannuation
• remuneration and promotion which may be affected by seniority, and
• any entitlements under the National Employment Standards.[10]

Related information

• Coverage of national workplace relations laws

There is no entitlement to annual leave (a NES entitlement) for the lockout period when the industrial action is valid employer response action under the Fair Work Act. The entitlement to annual leave in s.87 is for ‘service’. A period of lockout does not count as employee ‘service’ by reason of s.22(2)(b).[11]

"Meanings of service and continuous service

…

(2) [Exceptions to meaning of service]

The following periods do not count as service:

…

(b) any period of unpaid leave or unpaid authorised absence other than;

(i) a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii) a period of stand down under Part 3-5, under an Enterprise Agreement that applies to the employee, or under the employee’s contract of employment; or

(iii) a period of leave or absence of a kind prescribed by the regulations;

…"[12]

Action found NOT to be employer response action

Australasian Meat Industry Employees Union, The v JBS Australia Pty Ltd

[2014] FWC 2254 (Bartel DP, 4 April 2014)

Facts

The AMIEU made an application for an order pursuant to s.418 that industrial action taken by JBS stop.

JBS operate a meat works plant in Bordertown SA. It was in negotiations with the AMIEU for an enterprise agreement to replace an expired agreement.

The AMIEU provided written notice to JBS of protected industrial action to commence on 2 April 2014 in the form of multiple stoppages. On 31 March 2014 JBS provided notice to AMIEU of employer response action, stating that JBS was unable to provide employment on 2 April 2014, or on any other day in which employees could not be reasonably employed.

The AMIEU contended that the employer response action was not protected industrial action because no industrial action had taken place by the employees.

Outcome

The Commission was satisfied that the action taken by JBS was a lockout of employees and that this action was not protected industrial action because it did not meet the definition of 'employer response action' in s.411.

Relevance

Employer response action must be in response to industrial action that is happening. It cannot be in response to industrial action that is threatened, impending, probable or even imminent at the time that the employer's industrial action is implemented.

Action taken by employer after employee claim action had ceased found to be employer response action

United Voice v MSS Security Services Pty Ltd

United Voice v MSS Security Services Pty Ltd [2013] FWC 4087 (Cloghan C, 27 June 2013).

Facts

United Voice made an application to the Commission under s.418 for an order that proposed employer response action by MSS stop.

UV and MSS had been bargaining for a proposed enterprise agreement. UV had given notice of employee claim action. In response MSS gave notice to UV of employer response action in the form of a lockout of five employees, advising that the lockout was being organised and engaged in as a response to the industrial action. Subsequently UV gave MSS notice of employee response action as a direct response to the lockout of the five employees. The notice advised that all members of UV would be engaging in a 24 hour stoppage of work.

MSS gave notice of further employer response action in the form of a lockout of nine employees. The notice stated that the lockout was being organised and engaged in as a response to the industrial action that had been taken and provided that the lockout would ‘continue indefinitely’.

UV contended that the employer response action was not protected industrial action because the employee claim action had occurred and was ‘no longer action which is happening, threatened, impending, probable or being organised’.

Outcome

The Commission held that employer response action could only occur in response to employee claim action that is or has taken place. The Commission was satisfied that the employer response action was in reply to, and in answer to, the employee claim action, and that the employer response action was protected industrial action.

Relevance

There is no condition in the Fair Work Act which prevents an employer from taking employer response action because a particular occurrence of employee claim action has ceased.